IN THE HON’BLE HIGH COURT OF DELHI

Civil Appeal no….2020

MOOT PROBLEM NO 4
(In Partial Fulfillment of the LL. B Course/Vth Semester)

IN THE MATTER OF:

ABHISHEK ………APPELLANT

VERSUS

BIJU ………RESPONDENT

FOR OFFENCES CHARGED UNDER: COPYRIGHT ACT

UPON SUBMISSION TO: PROFESSOR SHAIWAL SATYARTHI

MOST RESPECTFULLY SUBMITTED BY:

COUNSEL ON BEHALF OF RESPONDENT:

Name

SEC-J, 5TH SEM (3RD YR)

EXAM ROLL NO.XXXX
CLASS ROLL NO. XXXX

MEMORIAL ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

S.NO PARTICULARS PAGE NO.

1. INDEX OF AUTHORITIES 3

2. STATEMENT OF JURISDICTION 4

3. STATEMENT OF FACTS 5

4. STATEMENT OF ISSUES 6

5. SUMMARY OF ARGUMENTS 7

6. ARGUMENTS ADVANCED 8-19

7. PRAYER 20

2
 INDEX OF AUTHORITIES

LIST OF JUDICIAL CASES

 DONOGHUE VS ALLIED NEWSPAPERS, LTD. (1937)3 CH.D.503

 R.G. ANAND VS M/S DELUX FILMS & ORS ON 18TH AUGUST,1978
 ANIL GUPTA & ANR. VS KUNAL DASGUPTA & ORS. ON 6TH MARCH 2002
 CORELLI VS GRAY (1913)29 TLR 570
 E.M. FORSTER & ORS. VS A.N. PARASURAM ON 9TH JAN 1964
 FOX FILMS CORPORATION VS ZEE TELEFILMS LTD. & ORS. ON 10TH JULY,2012.
 GRAMOPHONE COMPANY OF INDIA LTD VS SUPER CASSETTE INDUSTRIE LTD
ON 26TH AUG,2010
 MAHINDRA CHANDRA NATH GHOSH VS THE EMPEROR ON 3 MAY,1928.
 NOROWZIAN V ARKS LTD & ORS (1999) EWCA CIV 3014 /ENG & WALES HC
 URMI JUVEKAR CHIANG V. GLOBAL BROADCAST NEWS LIMITED 2008 (36) PTC
377 (BOM)
 ZEE TELEFILMS LTD V. SUNDIAL COMMUNICATION PVT LTD ON 27TH
MARCH,2003.

LIST OF STATUTES REFERRED

 Copyright act-1957
 Civil procedure code-1908

LIST OF INTERNATIONAL INSTRUMENTS REFERRED:

 BERNE CONVENTION
 UNIVERSAL COPYRIGHT CONVENTION

LIST OF BOOKS REFERRED

 V.K. AHUJA, LAW OF COPYRIGHT AND NEIGHBOURING RIGHTS:

NATIONAL AND INTERNATIONAL PERSPECTIVES, 2015
TH
 COPINGER & SKONE JAMES ON COPYRIGHT (13 EDN.)
 ALKA CHAWLA: LAW OF COPYRIGHT

WEBSITES REFERRED
1. www.indiankanoon.com
2. www.scconline.co.in
3. www.legalservicesindia.com

3
 STATEMENT OF JURISDICTION

The respondent humbly submits to the Hon’ble High Court of judicature exercises
jurisdiction to hear and adjudicate over the matter under Sec 96 of the Code of Civil
Procedure,1908 which reads as follows:

Appeal from Original decree: -

(1) Save where otherwise expressly provided in the body of this Code, or by any other law
for the time being in force, an appeal shall lie from every decree passed by any court
exercising original jurisdiction to the court authorized to hear appeals from the
decisions of such court.
(2) An appeal may lie from an original decree passed ex-parte.
(3) No appeal shall lie from a decree passed by the court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Causes, when the amount or value of the subject-matter
of the original suit does not exceed ten thousand rupees.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS

AND ARGUMENTS.

4
 STATEMENT OF FACTS

 Plaintiff Abhishek, an acclaimed scriptwriter, conceived a plot for a reality TV Program

that required competitors to survive in adverse geographical terrains for a period of
three months. First month was to be spent in a mountain the next month in a forest and
lastly in a desert.

 Plaintiff titled reality TV Program as “Back to Nature” which would center around
knowledge and skills required to survive in adverse climatic condition. Plaintiff sought
assistance from defendant who is college friend and had experience in TV industry.

 Defendant suggested that plot was unrealistic for the modern human to fend all alone in
adverse geographical terrain & suggested that plot need major changes.

 Plaintiff emailed outline of the plot to defendant. Defendant called after few days and
said that the plot was more unrealistic than it sounded in their meeting and Abhishek
should drop the idea and work on something else. Plaintiff didn’t pursue the matter
further with defendant.

 Defendant transformed idea into television programme after two months of hard work
titled “Man and Nature” and prepared a detailed concept note containing the concept,
the form, the treatment, the problems, etc. A famous production company ‘ABC LTD’
on their popular tv channel ‘X TV’ agreed to start the Program and released a trailer
titled “Man and Nature”.

 The show would be a reality tv series and the auditions would be held for couples who
would be challenged to spend three months in two adverse geographical terrains 45
days in a jungle and forty-five days in a mountain with no human close-by.

 Plaintiff feeling aggrieved of copyright infringement filed a suit in district court. The
district court did not grant any relief to plaintiff stating that there can be no copyright in
a plot as much as there can be no copyright in an idea.

 The Respondent, Biju defends the provision of Copyright Act – 1957 on the ground that
‘Mere an idea, theme or plot is not protected under Copyright Act but it’s form of
expression’. Copyright essentially protects the work of an author or creator and
prevents others from copying such original work. It does not bar others from coming to
the same result through an independent process.

5
 STATEMENT OF ISSUES:

1. WHETHER A PLOT IS EQUIVALENT TO IDEA WITH RESPECT TO

COPYRIGHT?

2. WHETHER PROGRAMME "BACK TO NATURE" AN INFRINGEMENT OF

THE PLAINTIFF COPYRIGHT & HAVE THE DEFENDANT OR ANY OF
THEM INFRINGED THE PLAINTIFF COPYRIGHT BY PRODUCING OR
EXIBITING THE PROGRAMME?

3. WHETHER THERE IS BREACH OF CONFEDENTIALTY BY

DEFENDANT?

6
 SUMMARY OF ARGUMENTS

1. WHETHER A PLOT IS EQUIVALENT TO IDEA WITH RESPECT TO

COPYRIGHT?

Copyright essentially protects the works of an author or creator and prevents others from
copying such original work. Ideas, concept and facts cannot be copyrighted. Only the form,
manner, arrangement, and expressions of the idea are copyrightable.

2. WHETHER PROGRAMME "BACK TO NATURE" AN INFRINGEMENT OF

THE PLAINTIFF COPYRIGHT & HAVE THE DEFENDANT OR ANY OF
THEM INFRINGED THE PLAINTIFF COPYRIGHT BY PRODUCING OR
EXIBITING THE PROGRAMME?

The concept of a real-life reality television show revolving around survival using knowledge
and skills was not first of its kind. Defendant time and developing concept of real-life TV
show of survival in adverse geographical terrains and subsequent reproduction of the same
in the format of proposed TV show titled “Man and Nature” does not amount to
infringement of plaintiffs' copyright.
If owners develop new work and get copyright protection to ensure that they can get profit
from their efforts. Owner has sole authority either to sell his work or to license it to the third
party who can make use of his work but if someone duplicates or reproduces the work of
copyright holder without the latter's permission, then this can lead to copyright
infringement, in which owner can take legal action against the infringer.

3. WHETHER THERE IS BREACH OF CONFEDENTIALTY BY

DEFENDANT?

A party cannot claim confidence in relation to a “concept or idea”, unlike in a claim or action
in the infringement of copyright. If the defendant acts and makes a reality show on the basis
of the concept and format supplied by the plaintiff, in such circumstances it would not be a
breach of confidence on the part of the defendant to exhibit or telecast any show.

The defendants have used the information in a new way through hard work. There was no
such contract or agreement between the parties as well as defendant have registered the idea
and plaintiff didn’t, interlocutory injunction should not be issued restraining such breach of
confidentiality of the theme, concept or scripts otherwise it would be catastrophic to the
defendant ‘s time and effort.

7
 ARGUMENTS ADVANCED

1. WHETHER A PLOT IS EQUIVALENT TO IDEA WITH RESPECT TO

COPYRIGHT?

The subject matter of copyright is enumerated in section 13 of the Copyright Act, 1957.
Section 13: Works in which copyright subsists. – (1) Subject to the provisions of this section
and the other provisions of this Act, copyright shall subsist throughout India in the following
classes of works, that is to say, —
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) [sound recording].
(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to
which the provisions of section 40 or section 41, apply, unless, —
(i) in the case of a published work, the work is first published in India, or where the work is
first published outside India, the author is at the date of such publication, or in a case where
the author was dead at that date, was at the time of his death, a citizen of India;
(ii) in the case of an unpublished work other than a 2 [work of architecture], the author is at
the date of the making of the work a citizen of India or domiciled in India; and
(iii) in the case of an [work of architecture], the work is located in India.

The respondent humbly submits that copyright is the right which a person acquires in a work
which is the results of his intellectual labour is called his copyright. The primary function of
copyright law is to protect the fruits of a man’s work, labour, skill or test from annexation by
other people.

Copyright protection subsists in original works of authorizing fixed in any tangible medium
of expression, from which they can be perceived, reproduced, or otherwise communicated.

However, copyright protection extends only up to the expression in the forms mentioned in
the above cases and not to the ideas.

The word "original" is prefixed to literary, dramatic, musical and artistic works and not to
cinematograph films and sound recordings as they are works made by making use of literary,
dramatic, musical and artistic works.

8
The word original does not mean that the work must be the expression of original or inventive
thought. Copyright Act are not concerned with the originality of ideas, but with the
expression of thought, and, in the case of literary work, with the expression of thought in
print or writing.

Ideas, concept and facts cannot be copyrighted. Only the form, manner, arrangement, and
expressions of the idea are copyrightable. Thus, different authors are not prevented from
independently developing the same idea, even if their products have some similarities.

That was a case where series of articles entitled "Steve Donoghue's Racing Secrets" were
published in a newspaper. Donoghue, who was a well-known jockey, communicated to Mr.
Felstead, a freelance journalist, his various adventures. Felstead made notes as the
conversations went on and he then wrote the articles. The manuscript was then taken
to Donoghue who read it over and when he thought that some alterations were necessary or
desirable, they would be noted in the margin by Mr. Felstead and were subsequently, at times,
recorded. Articles based on the original series of articles were later published in another
publication and entitled "my Racing Secrets. By Steve Donoghue" This publication took
place at the instance of Mr. Felstead. The plaintiff then sought an injunction restraining the
publication of the aforesaid work alleging that there had been an infringement of his
copyright. Justice Farwell held that the plaintiff did not have any copyright. It was observed
as follows: "IN the present case, apart altogether from what one may call merely the
embellishments, which were undoubtedly supplied wholly by Mr. Felstead, the ideas of all
these stories, and, in fact, the stories themselves, were supplied by the plaintiff; but, in my
judgment, upon the evidence, it is plain that the particular form of language by which those
stories were conveyed was the language of Mr. Felstead and not that of the plaintiff.
Although many of the stories were told in the form of dialogue, and to some extent Mr.
Felstead no doubt tried to reproduce the story as it was told to him by the plaintiff,
nevertheless the particular form of language in which those adventures of stories were
conveyed to the public was the language of Mr. Felstead, and not the language of Mr.
Donoghue.

It was pointed out that there was no copyright in an idea and in this connection Farwell, J.
Observed as follows: -1

1
DONOGHUE VS ALLIED NEWSPAPERS, LTD. (1937)3 CH.D.50

9
This. at any rate, is clear, and one can start with This beyond all question that there is no
copyright in an idea, or in ideas..............of the idea, however brilliant and however clever it
may be, is nothing more than an idea, and is not put into any form of words, or any form of
expression such as a picture or a play, then there is no such thing as copyright at all. It is not
until it is (If I may but it in that way) reduced into writing, or into some tangible form, that
you get any right to copyright at all, and the copyright exists in the particular form of
language in which, or, in the case of a picture, in the particular form of the picture by which,
the information or the idea is conveyed to those who are intended to read it or look at it".

It was laid down by the Hon’ble Supreme Court 2 that there is no copyright in an idea, subject
matter, themes, plots or historical or legendary facts. There need to be originality only in the
form of expression. In this case R.G. Anand, the author of the play “Hum Hindustani” sued
Deluxe Films a production company for making a movie- “NEW DELHI” that was allegedly
an exact copy of his play. The supreme court held that despite some similarities the movie did
not infringe the play’s copyright because there were substantial dissimilarities between the
two.

3
There is no copyright in the plot or theme, per se. The other relevant citations, on this aspect,
are Donoghue v. Allied Newspapers, Ltd. L.R. (1938) Ch. 106; Gopal Das v. Jagannath
Prasad A.I.R. 1938 All. 266 and Joy Music, Ltd. v. Sunday Pictorial, Ltd. (1960) 1 All E.R.
703 at 707. Originality, which is required, does not relate to ideas, but to the expression of the
thought. But certain distinctions do arise, with regard to this general doctrine, when we have
to consider the special instances of infringement of copyright in a novel by dramatization, or
by the conversion of a dramatic work into a novel or other non-dramatic form (Section 1(2)
(b) and
(c) of the Act). In such cases, piracy may arise by copy of the situations themselves, even
apart from the verbal expression (pages 170, 173 and 174 of Copinger). The point to note
here is that, in the matter before us, we are not concerned with any alleged conversion of the
novel of Mr. Forster into a dramatic form, but with the publication of Guide-book to the study
of the novel, which had been prescribed as a text-book for students taking the B.A. Degree in
the Madras University.
Thus, a person may have a brilliant idea for a story or for a picture but if he communicates to
an artist or play writer then the production which is the result of the communication of the
idea

2
R.G. ANAND VS M/S DELUX FILMS & ORS ON 18TH AUGUST,1978
10
3
E.M. FORSTER AND ORS. VS A.N. PARASURAM ON 9TH JAN 1964

11
is the copyright of the person who has clothed the idea in a form and the owner of the idea
has no right in that product.

Ideas should not be protected by law because it is very hard or nearly impossible to prove the
source of it. It is not easy to show that which person came up with the particular idea at the
first place, whereas, the expression of an idea which is much easy to proof. In an obvious
sense, the expression must be in a tangible or material form which means it must be
physically present. An idea can be expressed fruitfully in a material form when that idea
undergoes various ways of observation and thinking. It is not possible for a single person to
come up with innovative ideas what others separately can do. Each and every person
possesses a different level of intelligence power, the way of thinking, the way of observing.
Ideas become more and more creative and innovative when it is passed from a person to
another. If an idea gets protected by law in the first place, then it will obstruct and hinder the
level of creativity and innovation.
Expression in a material form must be valued more than idea because the person who came
with an idea cannot have a good command over language or have a remarkable writing skill.
A person with an excellent expressing skill can convert a simple idea into an interesting and
eye-catching expression which may motivate and attract many to view, read and listen. An
idea will not bear any fruit until n unless there is a creative expression of it. For example: A
musician comes up with an idea of a song with an intention to be liked by the youngsters. But
at the same time one of his musician friends advised him with a new idea to that that he must
add some pop music to it. And finally, when the music was released, it was appreciated and
enjoyed by almost all youngsters. This happened because the idea of the musician at first
place became more creative and fruitful with the addition of another to it. If there has been a
bar to the idea at first place then the particular expression would have missed the fruit and
success which is holding after its release.

11
 2. WHETHER PROGRAMME "BACK TO NATURE" AN INFRINGEMENT OF
THE PLAINTIFF COPYRIGHT & HAVE THE DEFENDANT OR ANY OF
THEM INFRINGED THE PLAINTIFF COPYRIGHT BY PRODUCING OR
EXIBITING THE PROGRAMME?

INTRODUCTION: Use of any copyrighted work without the permission of the owner
amounts to copyright infringement. Infringement occurs when a person intentionally or
unintentionally copies/uses the work of another without credit. Infringement is usually
classified into two categories- primary infringement and secondary infringement.

Primary infringement is the actual act of copying, while secondary infringement includes
unauthorized dealings like selling the pirated books, importing, etc.

SECTION - 51 - Copyright in a work shall be deemed to be infringed—

(a) when any person, without a license granted by the owner of the copyright or the Registrar
of Copyrights under this Act or in contravention of the conditions of a license so granted or of
any condition imposed by a competent authority under this Act –

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of
the copyright, or
[(ii) permits for profit any place to be used for the communication of the work to the public
where such communication constitutes an infringement of the copyright in the work, unless
he was not aware and had no reasonable ground for believing that such communication to the
public would be an infringement of copyright; or]

(b) when any person— (i) makes for sale or hire, or sells or lets for hire, or by way of trade
displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the
owner of the copyright, or

[Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work
for the private and domestic use of the importer.]
Explanation. —For the purposes of this section, the reproduction of a literary,
dramatic,musical or artistic work in the form of a cinematograph film shall be deemed
to be an “infringing copy”.]

12
In India, copyright infringement occurs when-
1) Copies of copyrighted work are made for sale/hire without permission or authority, like in
the case if online piracy.
2) A copyrighted work is performed in a public place.
3) Public exhibition of infringing copies by way of trade prejudicial to the owner.
4) Infringing copies are imported from another country into India

Copyright in a work may be infringed by copying that work. Copying can be done in three
ways: (i) Direct copying: (ii) Indirect copying (iii) Subconscious copying.

DIRECT COPYING: Reproduction of the plaintiffs work by defendant falls under this
category.
4
The plaintiffs ’contention was that the defendants had made a film purposely resembling the
plaintiffs’ film, and that the defendants film reproduced the essential feature of the plaintiffs’
film. On this basis, the plaintiffs alleged that the defendants’ film constituted copying of the
plaintiffs’ film. The defendant contended that they had made their own film and, therefore,
there was no copying. The court held that for the second film to infringe the copyright in the
first film, it had to be an actual copy of the first film. In respect of a cinematographic film, it
was the recording that was protected from copying and nothing else. If the defendants’ film
was a reshoot of the plaintiffs’ film, which reproduced the essential features of the plaintiffs’
film, but it was not a copy of the plaintiffs’ film, there would be no infringement.

INDIRECT COPYING:

Indirect copying means copying the work of a person by changing its form. For example, if
the plaintiff owns copyright in a drawing, and this is copied in three dimensions by the
defendant, indirect copying of the drawing will be side to have taken place. If a novel is
turned into a play, which is in turn converted into a ballet, the same will apply.

SUBSTANTIAL COPYING:

4
NOROWZIAN V ARKS LTD & ORS (1999) EWCA CIV 3014 /ENG & WALES HC

13
For an infringement to take place, there need not be an exact reproduction of the plaintiff’s
work. Copyright in a work is infringed by taking a substantial part of it.

What is the meaning of ‘substantial’? It is a question of fact and degree. The quantity alone is
not the test, a short extract may be a vital part of a work. Lord Reid held in Ladbroke v
William Hill. That the question whether the defendant has copied a substantial part depends
much more on the quality than the quantity of what he has taken.

5
Sergeant, J observed that where the aggregate of the similarities between the copyrighted
work and the copy lead to the cumulative effect that the defendant had imitated the original,
and that the similarities between the two works were not coincidental, a reasonable inference
of colourable imitation or of appropriation of the labour of the owner of the copyright by the
defendant was proved.

The Calcutta High Court6 observed: But the question is whether the offending pictures are
copies of substantial portions of the copyright picture The figures may have been introduced,
or the clothes and colours may have been different, but there can be no doubt whatsoever that
the main figures have an identical pose. These are not, in my opinion, coincidences due to the
pictures being produced to represent common stock ideas.

There is a thin line between inspiration and infringement. Copying a script in a unique way is
inspiration, but "in an original way" it is an absolute infringement of that right. Copyright
cannot protect "ideas" but only the mere expression of the same.

There are so many reality TV shows in the present day, it is not easy to get protection for
your concept and distinctiveness. No reality show with a generic script can fight for
infringement in the Court. It is essential to show the copying of the "formats" of the concept
and how unique they are.7

5
CORELLI VS GRAY (1913)29 TLR 570

6
MAHINDRA CHANDRA NATH GHOSH VS THE EMPEROR ON 3 MAY,1928.

14
The recent case of Zee Entertainment Enterprises Ltd. v. Sony Pictures
Networks8 (Bombay High Court) The plaintiff, Zee Entertainment claims that its popular
show 'India's Best Dramebaaz’, a televised talent hunt for child actors in the 5-12 age group
has been illicitly copied by the defendant, infringing its concept note and 'production bible'.
Zee contended that Sony's upcoming show 'Sabse Bada Kalakar' is a copy of 'India's Best
Dramebaaz'

The court held that though Zee's goodwill and reputation were not disputable, the other two
factors of the classic trinity test, i.e., misrepresentation and damage, were not sufficiently
addressed through the material presented. The court also observed that though copyright vests
in a production bible and concept notes as they are not just ideas but expression of ideas, it
does not follow that every page of a production bible or concept note enjoys the same level of
protection. In a teeming industry like entertainment, common elements are bound to be found
and a person claiming copyright in some aspect of a show must not readily claim copyright in
relation to matters which are incontestably in the public domain.

Another curious of copyright infringement of a reality show is Urmi Juvekar Chiang v.

Global Broadcast News Limited3 20079 (Bombay High Court), which was on the similar
lines of the above- mentioned case. Here, the plaintiff conceived an idea of a reality television
programme, tilted "Work in Progress" which would follow citizens from different parts of the
country as they took the initiative and set out to solve a civic problem of their choice in the
locality. The plaintiff transformed her idea into a concept and prepared a concept note sharing
it with the defendants. The defendants showed interest and after various meeting with the
plaintiff, the matter was not concluded. Later, the plaintiff came across a promotion of the
reality show, "Summer Showdown" having the same concept, launched by the defendants
clearly indicating the infringement of the plaintiff's rights. The Court restrained the
defendants from exploiting the plaintiff's work without her consent.

From the above cases it is easy to conclude that copyright cannot protect an idea or a concept
but only the form in which it is expressed. The cases above also conclude that copyright can
also exist in a particular "show format". Format elements, which are generic i.e., common to
the particular genre like game show, talent show etc. cannot be protected and will be ignored
in assessing infringement. To succeed infringement, it is necessary that the infringer is
reproducing a substantial part of another show's format and not just copying the generic idea
as to the concept of the show.

8
ZEE ENTERTAINMENT ENTERPRISES LTD. V. SONY PICTURES NETWORKS

9
URMI JUVEKAR CHIANG V. GLOBAL BROADCAST NEWS LIMITED3 2007

15
 3. WHETHER THERE IS BREACH OF CONFIDENTIALITY BY THE
DEFENDANT?

The confidentiality clause/ agreement has a widespread application in real life, and it’s used
in every commercial dealing. Its use in a variety of different contexts but generally used in a
collaboration like an effort which might be a joint venture in developing a new aeroplane
engine, to design new viral, or simply put where there is a sharing of any kind of proprietary
information.
To be enforceable, the disclosing Party must make it clear to the receiving party that the
information disclosed shall at all time remain confidential. Absence of such a clear indication
would cause an impediment in the enforceability. This is achieved either by pre-defining the
term “Confidentiality information” so as to indicate what constitutes confidential information
or by simply restricting the use by marking the document as confidential by any overt act of
the disclosing party.

10
The plaintiff is a banking company, and the defendant was in employment with the plaintiff
as head of their wealth management program for the northern region. The plaintiff stated that
the defendant quit her job and had taken up work with the competitor bank and was using
plaintiff’s client data to solicit their client/ customer from the plaintiff and induced them to
shift to the competitor bank. The plaintiff filed the suit for a permanent and mandatory
injunction against the defendant seeking inter-alia a restrain against the defendant from using
or disclosing any information and trade secrets relating to the business and operations of the
plaintiff. The plaintiff alleged that defendant’s action constitutes a breach of confidentiality
terms as mentioned in her letter of appointment, and the defendant’s action was against the
code of conduct concert the customer privacy policy.
It was categorically asserted by the defendant that the names of customers, their phone
numbers and addresses are well known and can easily be ascertained by anybody and such
information cannot be characterized as trade secrets or confidential information. It was
further contended by the defendant that she had built the relationship with all her clients and
obtained the data from the directories of the various organizations to solicit the customer for
the plaintiff while working for them. The bank does not have any proprietary rights on these
relationships, and the clients are not bound by any arrangement of exclusivity with the
plaintiff bank. In the

10
American Express Bank Ltd. v. Ms Priya Puri

16
circumstances, it was averred that the relief claimed against the defendant is nothing but an
attempt to injunct the clients shifting their accounts from the plaintiff and to restrain the
defendants from dealing with the clients.
The court held that the plaintiff had not produced anything which would show that they have
done something with the material which is available in the public domain to claim exclusive
rights in that. Moreover, whether the restraint is total or partial, unqualified or qualified, the
agreement is void if it is in control of trade. The court will not look into the test applied by
the English courts when the code is exhaustive on the topic covered by it. The perpetual
injunction demanded by the plaintiff was denied.

11
The most famous case for reality show and infringement is Anil Gupta v. Kunal Gupta and
Ors.22002 (Delhi High Court), where the plaintiff, a media consultant, in the year 1996,
conceived an idea of producing a reality television program containing the process of match
making to the point of actual spouse selection calling it "Swayamvar". Mr. Sibal, the learned
counsel for the plaintiff contended that it is a unique and novel concept for a T.V show and
the registration for the concept was accepted for which a certificate was also issued in 1997.
The defendants (who had discussed the same with the plaintiff before and showed interest in
the same, later declared of launching a big budget reality TV show which would also provide
for a platform for matchmaking called "Shubh Vivah". Mr. Sibal (Counsel for Petitioner)
later contended that the copyright was for creative, unique and novel TV show to conduct a
real-life matchmaking that was being infringed by the defendant.
The Court held that the plaintiff has prima facie proved that the defendants were aware of the
unique concept that was developed by the plaintiff and balance of convenience lied in favour
of the plaintiff and thus granted injunction against the defendant. Therefore, the defendants
were restrained from transmitting the television show "Shubh Vivah" or any show similar to
that of the plaintiff’s.

Lastly, when you’re dealing with unscripted source material, depending on how fictionalized
your version, you might need to acquire the life rights of the people involved. While real life
events are not subject to copyright protection, their recording are. Documentaries and reality
TV are not scripted and acted out in the traditional sense, but generally speaking anything
that

11
ANIL GUPTA & ANR. VS KUNAL DASGUPTA & ORS. ON 6TH MARCH 2002

17
ends up on camera qualifies for copyright protection, and the people who live those events
hold certain rights to their retelling. The more dramatized your telling is, the less likely you’ll
need to get those life rights
Have you ever wondered why you see so many different stories with the same concept? How
many police procedurals and courtroom dramas and reality dating shows are there anyway?
And why aren’t the producers all suing each other over it?
Well, some of them are, but that’s a story for another time. Most of them aren’t because in
the United States, copyright law doesn’t protect ideas or concepts alone. Section 102 (b) of
the Copyright Act states that “in no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described.” Ideas can’t be
copyrighted because there isn’t the requisite level of artistic expression behind them; in other
words, not enough creative thought generally goes into an idea to set it apart from other
similar ideas. After all, just saying “reality TV dating show where women compete to date a
single bachelor” doesn’t really take a lot of time to come up with, and if it were protected, the
producers of The Bachelor would have to contend with hundreds or thousands of lawsuits
from other similar shows, going all the way back to the invention of television.
Protecting a concept that simple would disincentivize creativity and innovation, which is a
founding precept of intellectual property law. What kind of world would it be if we only had
one police show, one romantic comedy, one adventure book?
Instead, copyright law protects “original works of authorship fixed in any tangible medium of
expression.” Although the idea behind “reality TV dating show” may not be protected under
copyright law, the execution of that concept — the details of the story, characters, themes,
and settings – is where copyright comes into play. How close is your execution of the idea to
theirs? The answer to that question will determine whether your fictional version infringes
their copyright.
As a lawyer, I’m not just interested in the similarities between your work and the work that
inspired it, however. I’m interested to know what sets it apart as well. If your fictional version
closely mirrors the events, plotlines, and characters of a particular season of The Bachelor,
yeah you might have some problems. But if you’re using the concept of The Bachelor as a
jumping off point to tell a different story, that changes things from a legal perspective.
In the case of R.G. Anand v. Delux Films, the Supreme Court, while adjudicating upon such
questionable infringement, adopted the test ‘ordinary-observer test.’ This test was first laid
down by an American court in the case of Daly vs Palmer, which states that if after watching

18
the movie, an unmistakable impression is made on the mind of an ordinary reasonable man
that it is a copy of another, it would constitute infringement. However, this test was further
evolved in the case of Twentieth Century 12Fox Film Corporation v. Zee Telefilms, where it
was stated that the infringing material must be looked at individually, then as a whole if the
theme was the same, however, the presentation was done in an entirely new manner, one
could hardly call it an infringement. This point has been used by the film industry extensively
as the plot of the movie might be the same, but the presentation is where it is declared as
“different.”
In the current scheme of things, it is indicative that there is a serious lacuna for laws that deal
with situations where, under the garb of adaptation, there is an audacious and repetitive
attempt to infringe the works which are copyrighted. Because, at the end of the day, it is not
just about the original words, songs, notes, or colour, it is about the creativity, time, and
passion that has gone into making something remarkable and irreplaceable.

12
FOX FILMS CORPORATION VS ZEE TELEFILMS LTD. & ORS. ON 10TH JULY,2012.

19
 PRAYER

WHEREFORE, in the light of the facts stated, issues raised, authorities cited,
and arguments advanced, the respondent humbly prayed before this Hon'ble High Court
that it may be pleased adjudge and direct: -

I. Dismiss the appeal of the appellant.

II.Dismiss application for injunction as it will cause huge loss to “ABC Ltd.” for not
telecasting the program.

AND/OR Pass any other order that this Hon’ble High court may seems fit and
proper in the interest of Justice, Equity and Good conscience.

All of which is respectfully submitted and affirmed.

Counsel on Behalf of Respondent:

XXXXXX
SEC-J, 5TH SEM (3RD YR)
EXAM ROLL NO.XXXX
CLASS ROLL NO. XXXX

20