BARGARH LAW COLLEGE , BARGARH

MOOT COURT EXERCISE FOR 2nd SEMESTER LL.B 2021

IN THE HON’BLE DISTRIC COURT OF BARGARH

C.C. NO. 707 OF 2020

IN THE MATTER OF

MR. GOPAL SINGH ,

(Plaintif)

V.
MR. MOHAN SHARMA
(Defendant 1)
&
PUBLISHER, MADHUSHAN PUBLISHING CO. PVT. LTD.
(Defendant 2)

ON SUBMISSION TO THE HON’BLE DISTRICT COURT OF BARGARH

SUBMITTED BY

NAME - SIDDHANT KUMAR NAIK

EXAM. ROLL NO- 1310521046
2nd SEMESTER LL.B - 2021

WRITTEN SUBMISSION ON BEHALF OF THE DEFENSE

 i

CERTIFICATE OF THE SUBJECT TEACHER

This is to certify that sri. Siddhant kumar naik a student of second semester 3years
LL.B -2021 has prepared and submitted the moot court memorial under my
supervision and guidance in partial fulfilment of the second semester examination,
2021 of madhusudan law university.

I wish all the success to him .

SIGNATURE OF THE SUBJECT TEACHER

 ii
TABLE OF CONTENTS

Table of contents..................................................................................................................ii

List of Abbreviations............................................................................................................iii

Index of Authorities..............................................................................................................iv

Statement of Jurisdiction......................................................................................................vi

Statement of facts ...............................................................................................................vii

Statement of Issues.............................................................................................................viii

Summary of Arguments......................................................................................................viii

Arguments Advanced.........................................................................................................1

ISSUE 1: WHETHER THE DEFENDANTS HAS INFRINGED THE

COPYRIGHT OF THE PLANTIF...................................................................................1

1.1 The book published by MPC was original....................................................................1

1.2 Lay observer test............................................................................................................2
1.3 Evidences laid are not valid...........................................................................................4

ISSUE 2: WHETHER THE DEFENDANTS ARE LIABLE TO PAY DAMAGES

AND INJUCTION ORDERS SHOULD NOT BE GIVEN.............................................6

2.1 Injuction should not be given........................................................................................6

2.2 No damages should be granted.....................................................................................7

2.3 The plaintiff id trying to defame the defendant.........................................................8

Prayer ..................................................................................................................................9
& And
LIST OF ABBREVIATIONS iii
 ¶ Paragraph
Acc. According
AIR All India Reporter
AP Andhra Pradesh
Andh. Andhra
Ano. Another
Art. Article
Cal. Calcutta
Corp Corporation
Del Delhi
DRJ Disaster Research Journal
Ed. Edition
Govt. Government
Harv. Harvard
Hon’ble Honorable
Hyd. Hyderabad
ILR Indian Law Reports
J. Justice
Ker Kerala
KLT Kerala Law Times
Ltd. Limited
Luck. Lucknow
MNCs. Multi-National Companies
Mohd. Mohammad
MP Madhya Pradesh
MPC Madhusudan Publishing Corporation
Mr. Mister
Ors. Other
p. Page
PTC Patent & Trade Marks Cases
Pvt. Private
Raj. Rajasthan
SC Supreme Court
SCC Supreme Court Cases
Supl. Supplementary
UBS Unspecified Bit Space
UDHR Universal Declaration of Human Rights
UOG Union of Gotham
U.P. Uttar Pradesh
INDEX OF AUTHORITIES iv
V. Versus
Vol. Volume
TABLE OF CASES
1. Abdool Ali v. Abdoor Rushman, (1874) 21 WR 429
2. Abdul Rasack v. Ma U, (1898) 2 UBR (1897-1901) 382
3. Academy of General education. B. Malini Mallya, AIR 2009 SC 1982.
4. Associated Publishers (Madras) Ltd. v. K.Bashyam alias 'Arya, AIR 1961 Mad. 114:
ILR (1961) Mad. 134: (1962) 1 Mad. LJ 258.
5. Baker v. Seldon, 101 U.S. 99 (1879).
6. Bhanwaria v. Ramratan, (1953) 4 Raj. 145.
7. Bhima Tima v. Pioneer Chemicals, (1967) 70 Bom. LR 683.
8. Bulakidas v. Shaikh Chhotu, (1942) Nag. 661
9. Concrete Mach. Co., Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1" Cir.
1988)
10. Dhanya Kumar v. Rajendra Prasad, AIR 1978 All 469.
11. Eastern Book Com. V. D.B Modak, 2008 1 SCC 1.
12. Fateh Singh Metha v. O.P. Singhal, AIR 1990 Raj.
13. Funky Films, Inc., v. Time Warner Entertainment, Co. L.P., 462 F.3d 1072, 1071 (9th
Cir. 2006).
14. Godrej Soaps (P) ltd. V. Dora Cosmetics Company, 2001 PTC 407 (Del).
15. Gopal Das v. Jagannath Prasad, AIR 1938 All ILR All 370
16. Gopal Krishnaji v. Mohd. Haji Latif, AIR 1968 SC 1413.
17. Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988).
18. Hari Singh v. Shish Ram, AIR 2003 P&H 150
19. International Film Service Com. Ltd. v. Associated Producers Inc. 273 F 585 (DCNY
1921).
20. Ishwar Dass Jain v. Sohan Lal, AIR 2000 SC 426.
21. Jainarain v. Zubeda, A 1972 A 494.
22. Jindal (India) Private Ltd. (M/s.) v. Diamond Plastic Products (M/s.), 1993 PTC 300
Del.
23. Kirpal Singh v. Kartaro, AIR 1980 Raj.
24. Khadim Ali v. Jagannath, (1940) 16 Luck. 230.
25. KPM Khidmat Sdn Bhd v. Tey Kim Suie, (1994) 2 Malayan LJ 627 (SC Malaysia)
26. Krishka Lulla v. Shyam Vithalrao Devkatta, (2016) 2 SCC 521; 2015 SCC OnLine SC
960.
27. Krishna Kishori Chowdhrani v. Kishori Lal Roy. (1887) 14 Cal 486: 14 IA 71.
28. Lamba Brothers Pvt. Ltd. v. Lamba Brothers, AIR 1993 Del. 347: 1993 (2) Arbi LR
509: 1993 PTC 345 Del.
29. Longman v. Winchester, (1809) 16 Ves Jun 269: 33 ER 987.
30. Madholal Sindhu v Asian. Assu. Co. Itd., (1945) 56 Bom. LR 147.
31. Mahant Bachan Dass v. Ved Prakash Gupta, 1992 SCC OnLine Del 390; (1992) 24
DRJ 217.
32. Mac Millan v. Suresh Chunder Dev, ILR (1890) 70 Cal 951.
33. Ma Mi v. Kallander Ammal (No. 2). (1926) 54 IA 61: 29 Bom. LR 800: 5 Ran 18. v

34. Masters and Scholars of the University of Cambridge v. B.D. Bhandari, MIPR 2009
(2) 60.
35. Oriental Fire & General Ins. Co. v. Chanrawali, AIR 1989 P&H 300
36. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
37. Ramkrishna Girishchandra Dode v. Anand Govind Kelkar, AIR 1999 Bom. 89.
38. R.G. Anand v. M/s. Delux Films, AIR 1987 SC 1613.
39. Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457.
40. S.K. Dutt v. Law Book Co., AIR 1954 All 570: 1954 All LJ 125: ILR (1954) 1 All
289
41. Thimmaiah v. Shabira, (2008) 4 SCC 182: AIR 2008 SC 1275.
42. Veerappa v. Md. Attavullah, (1951) Hyd. 74.

BOOKS CITED/REFERRED

1. Stokes' Anglo-Indian Codes, Vol. II, p.892 f.n. 2.

2. Cornish W.R. Intellectual Property: Third Edition, First Indian Reprint by University
Law Publishing, Delhi (2001)
3. Bhandari, Dr. M. K., 2012. Law relating to Intellectual Property Rights. 3rd ed.
Allahabad: Central Law Publications
4. Paul, Meenu, 2003. Intellectual Property Law. 1st ed. Delhi: Allahabad Law Agency
5. Jacob, Sir Robin, 2004. A Guide Book to Intellectual Property. 5th ed. London: Sweet and
Maxwell.
6. Warrier, Vishnu, 2015. Understanding Patent Law. 1st ed. Gurgaon: Lexis Nexis
7. K. Yu, Peter, 2012 Intellectual Property and Information Wealth. 4th ed. Delhi:
Pentagon Press.
8. Llewelyn, D., 2010. Intellectual Property, Patents, Copyright, Trade Marks and Allied
Rights. 7th Ed. New Delhi: Sweet and Maxwell.
9. D. Llewelyn, w. Cornish, 2008. Intellectual Property, Patents, Copyright, Trade
Marks and Allied Rights. 2nd Ed. New Delhi: Sweet and Maxell.
10. Cornish, William, 2006. Cases and Materials on Intellectual Property. 5th ed.: Sweet
and Maxell.
11. Epstein, Michael A., 2008. Epstein on Intellectual Property. 5th Ed. New Delhi:
Wolters Kluwer
12. Singh, Dr. Raghubir, 2014. Law relating to Intellectual property. 3rd Ed. New Delhi:
Universal Law Publishing Co.
13. Sarkar, Sudipto, 2009. Law of Evidence in India. 16th ed. Nagpur: Lexis Nexis
14. V R Manohar, Justice Y V Chandrachud, 2006. Law of Evidence in India. 21st ed.
Nagpur: Lexis Nexis

LEGISLATIONS REFERED
1. Code of Civil Procedure, 1908
2. Indian Evidence Act, 1872
STSTEMENT OF JURISDICTION
3. Copyright Act, 1857
vi
4. Specific Relief Act, 1963
The plaintiff has approached the Hon'ble District Court under Section 62 of Copyright Act,
1957 with Section 20 of Civil Procedure Code, 1908:
62. Jurisdiction of court over matters arising under this Chapter. (1) Every suit or other
civil proceeding arising under this Chapter in respect of the infringement of copyright in any
work or the infringement of any other right conferred by this Act shall be instituted in the
district court having jurisdiction.

(2) For the purpose of sub-section (1), a "district court having jurisdiction" shall,
notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any
other law for the time being in force, include a district court within the local limits of whose
jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting
the suit or other proceeding or, where there are more than one such persons, any of them
actually and voluntarily resides or carries on business or personally works for gain.

Read with Section 20:

20. Other suits to be instituted where defendants reside or cause of action arises: -
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local
limits of whose jurisdiction

(a) The defendant, or each of the defendants where there are more than one, at the time of the
commencement of the Suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such
institution; or

(c) The cause of action, wholly or in part, arises.

vii

STATEMENT OF FACTS
i. Shyam Singh 'Madhav', a writer passed away on 1st November, 2015. His lawyer
disclosed the contents of his will which bequeathed all of his works copyright therein upon
his son, Gopal Singh.

ii. Mr. Gopal, donated the books to a local private library called Shri Giridhar Library, looked
after by Keshav Prasad(owner), and asserted a copyright in all the books and
drew up a license agreement for unpublished works which included a 5 poem book
"Radiance". Keshav Prasad had a helper named Mr. Banwari and a guard Mr. Banke
who maintained an entry register at the gate.
iii. On 11th December, 2015, Mr. Keshav Prasad found Radiance missing. On checking, he
found that over 70 people had come to the library and gone between yesterday and then. He
immediately filed an FIR with the police and informed Gopal Singh. However over the next
few months, the matter went on the backburner for the police as well as for the library.

IV. On the morning of 8th March 2016, Gopal Singh noticed an article 'Launch of
"Iridescence": by Mohan Sharma 'Murlidhar". It said, the launch took place in Bargarh on 7th
March and that Mohan Sharma, an author, may receive the Gyanpeeth Award.

V. On 15th March, Keshav called Gopal to the library and showed him the newly ordered
book called 'Iridescence'. Gopal felt that it was a copy of Radiance. It was a collection of five
poems.

VI. Further Banwari had left the services of Keshav in January and joined Madhusudan
Publishing Company Pvt. Ltd. as a staff. MPC, a Company registered and having its office in
Bargarh.The same company that published Mohan Sharma's 'Iridescence".

VII. Gopal Singh contacted Mr. Govind Shrivastav, an old friend of his father. During his
lifetime, his father used to send his works to Mr. Govind for comments. He found out that his
father did send him the copy of the collection of poems.

VIII. After going through the manuscript sent by Mr. Govind, Mr. Gopal sent a cease and
desist notice to Mr. Mohan and MPC. However, Mr. Mohan responded by asserting that he
had not infringed copyright in any work, and that Iridescence was his original work that he
wrote taking consultation from Mr. Natwar, his editor and an employee of MPC. Mr. Gopal
filed a civil suit for copyright infringement against Mohan Sharma.

viii

STATEMENT OF ISSUES
ISSUE 1: WHETHER THE DEFENDANTS HAS INFRINGED THE COPYRIGHT OF
THE PLAINTIFF.

1.1 The book published by MPC was original

1.2 Lay Observer Test
1.3 Evidences laid are not valid

ISSUE 2: WHETHER THE DEFENDANTS ARE LIABLE TO PAY DAMAGES AND

INJUNCTION ORDERS SHOULD NOT BE GIVEN.

1.3 Injuction should not be given

1.4 No damages should be granted
1.5 The plaintiff id trying to defame the defendant

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE DEFENDANTS HAS INFRINGED THE COPYRIGHT OF

THE PLAINTIFF.

It is humbly submitted before the Hon'ble district court that the defendant has not infringed
the copyright of the plaintiff on the unpublished book "Radiance" by publishing it with a
different name and a slight difference in the words with same meaning. The burden of
adverse possession cannot be Excepted by any court except on consideration of evidence led
before it and it is obligatory for the party taking up a plea of adverse possession to proof and
establish their right to the same.

ISSUE 2: WHETHER THE DEFENDANTS ARE LIABLE TO PAY DAMAGES AND

INJUNCTION ORDERS SHOULD NOT BE GIVEN.

The defendant humbly submit before the Hon'ble Court that the plaintiff is not entitled to get
damages and no injunction orders should be passed as there was no infringement of the
copyright. It is being explained with the relevant facts that the defendant has its own
originality of work to that of plaintiff's work. Though the two writers got the same idea but
the expression and the feeling involved were different and the essential element for the
infringement of the copyright is copying of the similar expression.

1
 ARGUMENTS ADVANCED

ISSUE 1: THAT THE DEFENDANTS HAS NOT INFRINGED THE COPYRIGHT OF

THE PLAINTIFF,

It is humbly submitted before the Hon'ble district court that the defendant has not infringed
the copyright of the plaintiff on the unpublished book "Radiance" by publishing it with a
different name and a slight difference in the words with same meaning. The burden of
adverse possession cannot be Excepted by any court except on consideration of evidence led
before it and it is obligatory for the party taking up a plea of adverse possession to proof and
establish their right to the same.1

1.1 The book published by MPC was original

The plaintiff claimed that a book written by Shyam Singh was copied by Mohan Sharma and
Published by Madhusudan Publishing Company Pvt. Ltd. (MPC). The book which was
blamed of being copied was purely original work by the Author, according to section 51 of
copyright act 1957 states where the same idea is being developed in a different manner, it
manifest that the source being common, similarities are bound to occur. In such a case the
court should determine whether or not the similarities are on fundamental or substantial
aspects of the mode of the different expression adopted in the copyright work. If the
defendants work is nothing but literal imitation of the copyrighted work having variation in
the expression would not amount to violation of the copyright. 2In the present case the book
published was the original idea of the author as the similarities are fundamental & substantial
in the mode of idea but different in the mode of expression therefore the similarities in idea
would not amount to any infringement of a copyright.3

The work of author is his own product and is not the result of copying. Author had
contributed more than a merely trivial variation on an existing work. The standard of
originality does not require novelty, ingenuity or esthetics merit. The copyright of the book, if
not pirated from other works, would be valid without regard to the novelty, or want of
novelty, of its subject matter. Then novelty of the art or the things described or explained has
nothing to do with the validity of copyright. 4There is no imitation of the artistic work of the
plaintiff. There is no substantial reproduction by the defendant in his literary work within the

1
Mahant Bachan Dass v.Ved Prakash Gupta, 1992 SCC OnLine Del 390; (1992) 24 DRJ 217.
2
R.G. Anand v. M/s. Delux Films, AIR 1987 SC 1613
3
Refer Fact Sheet Annexure 2&3
4
Baker v. Seldon, 101 U.S. 99 (1879); Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir.
2
1988).

meaning of Section 2(m) of the Copyright Act. 5There cannot, however, be a copyright in an
event which has actually taken place. There is a distinction between the materials upon which
one claiming copyright has worked and the product of the application of his skill, judgement,
labour and literary talent to these materials. Ideas, information, natural phenomenon and
events on which an author expends his skill, labour, capital, judgement and literary talent are
common property and are not the subject of copyright.6

The definition of "literary work" given in section 2(o) of the copyright act 1957 is an
exclusive definition and therefore not exhaustive. The literary work includes tables and
compilations. Dissertation is, therefore prime facie a literary work. The word "original" does
not mean that the work must be expression of original and invented thoughts. The copyright
acts are not concerned with the origin of ideas but with the expression of thoughts. The act
does not requires that the expression must be in an original or novel form, but that work must
not be copied from another work that it should originate from the author. 7Where there is no
substantial similarity and the other party has no evidence to review the same in his favour
then there is no infringement of copyright.8

1.2 Lay Observer Test

The defendant humble contends before this Hon'ble court that an essential part of copyright
infringement / Lay observer Test has not been passed. For copying to be actionable, it must
amount to an improper appropriation of the plaintiff's work. To prove improper
appropriation, the plaintiff must show that the defendant's work is substantially similar to the
original, copyrightable expression in the plaintiff's work. Unlike the inquiry into factual
copying, any similarities found between the defendant's work and the unoriginal or non
In order to constitute infringement there should be direct or indirect use of those features
copyrightable elements of the plaintiff's work are disregarded in the improper appropriation.
of the plaintiff in which copyright subsisted. It is really on the effect produced upon the
mind by a study of the idea, and of that which is alleged to be a copy of it.9

The surest and safest test to determine whether or not there has been a violation of copyright
is to see if the reader, spectator or the viewer after having read or seen both the works is

5
Jindal (India) Private Ltd. (M/s.) v. Diamond Plastic Products (M/s.), 1993 PTC 300 Del.
6
Supra at 2.
7
Fateh Singh Metha v, O.P. Singhal, AIR 1990 Raj.
8
Godrej Soaps (P) Itd. V. Dora Cosmetics Company, 2001 PTC 407 (Del).
9
Associated Publishers (Madras) Ltd. v. K.Bashyam alias Arya', AIR 1961 Mad. 114: ILR
(1961) Mad. 134: (1962) 1 Mad. LJ 258.

clearly of the opinion and gets an unmistakable impression that the subsequent appears to be
the copy of the original. Where the theme is the same but is present and treated differently so
that the subsequent work becomes a completely a new work, no question of violation of
copyright arises.10
ESSENTIALS TO BE PROVED:

1. Whether the defendant took from the plaintiff's works so much of what is pleasing to the
eyes of lay readers, who comprise the audience for whom such popular book is composed,
that defendant wrongfully appropriated something which belongs to the plaintiff.

2. Whether the defendant wrongly copied enough of the plaintiff's protected expression to
cause a reasonable lay observer to immediately detect the similarities between the plaintiff's
expression and the defendant's work, without any aid or suggestion from others.

Where, however, apart from the similarities appearing in the two work there are also material
and broad dissimilarities which negate the intension to copy the original and the coincidences
appearing in the two work are clearly incidental and no infringement of the copyright comes
into the existence.11Here in the present case the defendant has not done any improper
appropriation to the plaintiff's work as it is being stated in the essentials that to be proved are
not identical in defendant's work where there was no pleasing to eyes of lay reader that the
expression were copied, which were different from the plaintiff's work though the concept,
the idea of the work could be similar but it couldn't be prove that the defendant has
misappropriated the work of plaintiff.

In addition to it has been talking about the similarities in the defendant's work to that of
plaintiff where in the poem "I Choose the Mountains"12 no copyright subsist in the title of the
literary work and the plaintiff or the complainant is not entitled to relief on such basis except
in an action in passing of or in respect of registered trademark comprising such titles. 13A title
of a work has been considered to be not fit to be the subject of the copyright law. A title by
itself is in the nature of a name of a work and is not complete by itself, without the work. 14
10
R. G Anand v. Delux Films, (1978) 4 SCC 118; AIR 1978 SC 1630.
15
11 The same title does not constitute any same expression but the same idea of two
Ibid.
12
Refer Fact Sheet Annexure II and Annexure III
13
Krishka Lulla v. Shyam Vithalrao Devkatta, (2016) 2 SCC 521; 2015 SCC OnLine SC 960.
14
Supra at 9.

writers. In poem " Gratitude" the writer has written about the offered in those of need
whereas the defendant has clear the idea in a way better manner by defining offered in those
of people here he has given the clear idea of need of people.16

In the poem "A Prayer of excellence" the plaintiff has given the name of Hindu God" whereas
the defendant has use the name of" Christian God". Though the expression in the poem was
different by giving different names to God but the idea the feelings involved the poem is the
same which cannot be constituted as an infringement of a copyright. For infringement of
copyright the expression should be same here the case the expression were totally to the
different the idea of plaintiff's work.17

1.3 Evidences laid are not valid

Plaintiff, in order to prove the author and publisher guilty produced a mere copy of scribbled
writing, which the plaintiff claims was given to Mr. Govind Srivastava by his father Shyam
Singh Madhav for suggestions.18 The 'proof' produced by the plaintiff has no indication that it
was written by the eminent author himself.

According to clause 5 of Section 63 of the Indian Evidence Act, secondary evidence includes,
oral accounts of contents of a document, given by some person who has himself seen the
original document.19 Secondary evidence of a document which is lost or difficult to trace can
adduced in two ways:

1. By oral evidence of persons who were present when document was executed;
2. By a certified copy of the original document.20

According to Section 76 of the Act, where a copy bears no certificate and it is not supported
by the evidence of the person who prepared it, it is not admissible in evidence. 21 In the
present case, there is no oral evidence by the person who was present when document was
executed and the copy of the poems produced does not come under the definition of certified
copies as mentioned in Section 76 of the Act.

15
Mac Millan v. Suresh Chunder Dev, ILR (1890) 70 Cal 951; Longman v. Winchester,
(1809) 16 Ves Jun 269: 33 ER 987; International Film Service Com. Ltd. v. Associated
Producers Inc. 273 F 585 (DCNY 1921).
16
Supra at 2.
17
Ibid.
18
Refer Fact Sheet, Page 2, ¶ XI.
19
Ma Mi v. Kallander Ammal (No. 2), (1926) 54 IA 61: 29 Bom. LR 800:5Ran 18.
20
Veerappa v. Md. Attavullah, (1951) Hyd. 74.
21
Khadim Ali v. Jagannath, (1940) 16 Luck. 230.
5

It is contended, that there isn't any date mentioned on the piece of paper, which is a major
oversight, as there is no idea on when the poems were written. If the poems were written
originally, there should be a date somewhere indicating when it was written. Further being at
person who had such a high value for art, the first and foremost step of Mr. Shyam should
have been to put his signature on the piece of paper which he sent to his friend. No artist
whether a painter, poet or musician would ever give out their work without any
acknowledgment to show whose effort has been put into reaching the output, whether it is a
person who is dear to them or a stranger. A signature is an identity of the artist and no artist
would do the blunder of sending out his work without a signature.

In addition to this, the original copy of the book was found missing from the library, and as
the book was unpublished there was only one copy of the book. 22 There is no exact proof that
the evidence presented before the court is original as there is no verification that the
handwriting on the sheet was the same as the deceased author. There is probability that the
family member could have faked the sheet. The book being unpublished and in extreme
discretion with a local library, there will be hardly any third party who is not related to the
family to come out and verify if the book was actually similar to Iridescence.

Original account books have to be produced for the inspection of the court. Copies or extracts
are in nature of secondary evidence, and, before they can be received in evidence, proper
foundation would have to be laid under Section 65 23 for reception of secondary evidence. 24
Laws of copyright do not protect ideas but they deal with particular expression of ideas. 25
The protection of ideas falls within patent laws. 26 In cases of copyright, it is possible to arrive
at the same result from the independent sources and fact that the defendant produces
something like plaintiff's earlier work does not necessarily create an infringement. 27

Secondary evidence of the contents of a document cannot be admitted without the non
production of the original being first accounted for in such manner as to bring it within one or
other of the cases provided for in the section. 28 It is incumbent on the person who tenders
secondary evidence to show that it is admissible: the question of admissibility is ordinarily

22
Refer Fact Sheet Page 1 ¶ V.
23
The Indian Evidence Act, 1872.
24
Ishwar Dass Jain v. Sohan Lal, AIR 2000 SC 426.
25
Gopal Das v. Jagannath Prasad, AIR 1938 All 266: ILR (1938) All 370.
26
Supra at 16.
27
Ibid.
28
Krishna Kishori Chowdhrani v. Kishori Lal Roy, (1887) 14 Cal 486: 14 IA 71; KPM
Khidmat Sdn Bhd v. Tey Kim Suie, (1994) 2 Malayan LJ 627 (SC Malaysia)

for the court of first instance.29 If a document is inadmissible in consequence of not being
registered or not being properly stamped, secondary evidence cannot be given of its
existence. 30 When the original account of books are available, copies are not admissible.31

The Apex Court in case of Roman Catholic Mission v. State of Madras, 32 observed that where
no original document was produced, no foundation was laid to establish the right to give
secondary evidence. In the circumstances, copies of original documents are not admissible in
evidence. Similarly in another case of Gopal Krishnaji v. Mohd. Haji Latif, 33 the Apex court
held that where a party had not produced the best evidence which could have thrown light on
the issue in controversy, the court ought to draw an adverse infringe against him not
withstanding that onus of proof does not lie on him. The party cannot rely on abstract
doctrine of onus of proof or on the fact that he was not called upon to produce it.34

Section 67 of the Indian Evidence Act, 1957 merely acquires proof of signature and
handwriting of the person alleged to have signed a written document produced. 35 Mere
admission of execution of a document is not sufficient. Proof that the signature of the
executant is in his handwriting is necessary. 36 Where merely the signature of a person to a
type-written document was identified by a witness, it was held that what was formally proved
was the signature and not the body of the document.37

The plaintiff has played eleverly with the evidence as there is no actual party, person or
system to prove that the plaintiff has forged the entire evidence. Mr. Mohan Sharma was in
line for the prestigious Gyanpeeth awards38, many people could not digest his achievement,
especially who have a poetic background themselves. If Mr. Gopal was really worried about
his father's book he would have put in more efforts to retrieve the book as soon as it had gone

29
Abdul Rasack v. Ma U, (1898) 2 UBR (1897-1901) 382. Secondary evidence was not
allowed where the primary was on record. Kirpal Singh v. Kartaro, AIR 1980 Raj; Oriental
Fire & General Ins. Co. v. Chanrawali, AIR 1989 P&H 300, a copy original policy produced
without making out any exception, held liable to be rejected. Hari Singh v. Shish Ram, AIR
2003 P&H 150,a photo static copy of the original deed of family settlement was filed. The
courts said that it was sine qua non for the party to show that original was in existence and
could not be produced and the photo evidence was allowable under one or the other
exceptions.
30
Stokes' Anglo-Indian Codes, Vol. II, p.892 f.n. 2.
31
Jainarain v. Zubeda, A 1972 A 494.
32
AIR 1966 SC 1457.
33
AIR 1968 SC 1413.
34
S.K. Dutt v. Law Book Co., AIR 1954 All 570: 1954 All LJ 125: ILR (1954) 1 All 289.
35
Abdool Ali v. Abdoor Rushman, (1874) 21 WR 429; Madholal Sindhu v. Asian. Assu. Co.
Ltd., (1945) 56 Bom. LR 147.
36
Bulakidas v. Shaikh Chhotu, (1942) Nag. 661; Bhanwaria v. Ramratan, (1953) 4 Raj. 145; 6
Ramkrishna Girishchandra Dode v. Anand Govind Kelkar, AIR 1999 Bom. 89.
37
Bhima Tima v. Pioneer Chemicals, (1967) 70 Bom. LR 683.
38
Refer Fact
missing, whichSheet Page
he did 1 do.
not ¶ VII.
There are high chances that Mr. Gopal wrote the poems after
the publishing of Iridescence, being a son of a poet it would not be difficult for him to just
play around with the words and make a poem very similar to the ones written by Mr. Mohan
Sharma, putting the credit on Mr. Shyam Singh who is deceased, makes it even more simpler
as he is deceased and he is not present to question. The evidence is an imitation of the actual
poem and cannot be considered as a substitute to the original work.

ISSUE 2: THAT THE DEFENDANTS ARE NOT LIABLE TO PAY DAMAGES AND
INJUNCTION ORDERS SHOULD NOT BE GIVEN.
The defendant humbly submit before the Hon'ble Court that the plaintiff is not entitled to get
damages and no injunction orders should be passed as there was no infringement of the
copyright. It is being explained with the relevant facts that the defendant has its own
originality of work to that of plaintiff's work. Though the two writers got the same idea but
the expression and the feeling involved were different and the essential element for the
infringement of the copyright is copying of the similar expression.

2.1 Injuction should not be given

Here, in the present case the literary work of the defendant has the same ideology but
different mode of expression which constitute that there was no infringement of the copyright
and the work proven to be original.

The court while passing a decree for permanent injunction, is obligatory to consider statutory
provision governing the same.39 In the present case there has been violation of any copyright
therefore the plaintiff cannot ask for the injunction. Before an injunction can be granted it has
to be shown that the plaintiff was in possession the general proposition was well settled that a
plaintiff not in possession is not entitled to the relief. 40 The two books have a difference
which has been proven and there is originality of work so there cannot be grant of any
injuction against defendant for his own work.

Substantial similarity refers only to the expression of the artist's concept, not the underlying
idea itself: "when there is essentially only one way to express an idea, the idea or its
expression are inseparable and copyright is no bar in copying that expression." 41It is well

39
Academy of General education B. Malini Mallya, AIR 2009 SC 1982; Eastern Book Com
V. D.B Modak 2008 1 SCC 1.
40
Thimmaiah v. Shabira, (2008) 4 SCC 182: AIR 2008 SC 1275
41
Concrete Mach. Co., Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1 ST Cir.
1988)
7

settled that although the proprietor's monopoly extends beyond an exact reproduction of the
words, there can be no copyright in the "ideas" disclosed but only in their "expression".
Obviously, no principle can be stated as to when and imitator has gone beyond copying the
"idea,"and has borrowed its "expression." Decision must be therefore inevitably be ad
hoc.42Courts have experienced particular difficulties in applying the substantial similarity test.
This is due to the fact that only the form of expression is entitled to copyright protection, not
the underlying ideas, and the form of expression includes both literal and non-literal
components.43 Holding that while some similarities in poem appeared significant, an actual
reading of the two works revealed greater, more significant differences and few real
similarities in the poem and the works were substantially not similar.
In a decision rendered by Allahabad High Court,it was pointed out that in his suit for
perpetual injunction, it is incumbent on the plaintiff to affirmatively establish the right on the
basis of which he claims to restrain the defendant. 44The book of the defendant cannot be
considered as a substitute of the writings of the plaintiff and therefore, copyright infringement
cannot be claimed. The defendant has compiled the book with sufficient labour.It cannot be
said that the defendants without any effort or input of skill merely copied. 45The plaintiff in
such circumstances, could not get any right and is not entitled for perpetual injunction to the
effect.

2.2 No damages should be granted

There was no damages to the plaintiff, as there was originality of the work. Though the
damages have been faced by the defendant because of plaintiff act where there was no right
infringe, the literary was his own ideology and there was no actual damage to the plaintiff in
reference to the book. Further, no question of damages arises as:

 There subsisted no copyright in the work alleged to be infringed

 The plaintiff is not entitled to sue as he is not the owner of "Iridescence"
 The defendant's work is independent and is not copied from the plaintiff's works
 The defendant's action does not constitute infringement of the plaintiff's work

42
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
43
Funky Films, Inc., v. Time Warner Entertainment, Co. LP,462 F.3d 1072,1071 (9 thCir.
2006).
44
Dhanya Kumar v. Rajendra Prasad, AIR 1978 All 469.
45
Masters and Scholars of the University of Cambridge v. B.D. Bhandari, MIPR 2009 (2) 60.

No copyright can be claimed on the basis of mere fact that there is some printed matter which
has got words and sentences has no claim of the copyright. 46 In actions for infringement of
copyright damages are often not an adequate remedy since there are difficulties in both
ascertaining and quantifying such damages.47 The plaintiff do not has any right to claim
8
damages. In fact, the plaintiff are liable to pay exemplary damages for such an act.
2.3 The plaintiff is trying to defame the defendant

The defendant humbly submit before the Hon'ble court that the plaintiff has defamed the
author of the book Radiance by claiming copyright infringement. The plaintiff very well
came to know on 11th December itself, when radiance was found missing, that the book has
been lost.48 But he took least interest in the investigation by the police and did not raise any issue
for months and the matter went on the backburner for the police as well as for the library. 49 Then
suddenly when he came to know about the launch of Iridescence and Gyanpeeth award to the
author of the same he claimed the infringement of the copyright which was not actually present.
By this one could easily make out that the plaintiff was trying to defame the defendant.
46
Lamba Brothers Pvt. Ltd. v. Lamba Brothers, AIR 1993 Del. 347: 1993 (2) Arbi LR 509:
1993 PTC 345 Del.
47
Section 51, Copyright Act, 1957.
48
Refer fact sheet page l ¶ V.
49
Refer fact sheet pagel, ¶ VI.

PRAYER

Wherefore in the light of issues involved, arguments advanced, reasons given and the
authorities cited, this Hon'ble court may be pleased:

TO HOLD:

 Madhusudan Publishing Company and Mr. Mohan Sharma are not liable for
infringing copyright.
 Mohan Sharma and Madhushan Publishing Company are not liable to pay damages to
the plaintiff.

TO PASS:
  Damages of Rs. 5, 00,000 should not be given.
 Interim Orders to stop the publication should not be passed.
 Permanent injuction should not be given.

AND/OR

MISCELLANEOUS:

Any other relief which this Hon'ble court may be pleased to grant in the interests of Justice,
Equity and Good Conscience. All of which is respectfully submitted.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/-

(counsels for the defendant)