An infringement of copyright cannot be permitted merely because it is claimed to be in the public interest written by Avdhesh Parashar student of Maharashtra National Law University Aurangabad
RUPENDRA KASHYAP VS. JIWAN PUBLISHING HOUSE 1996 (38) DRJ 81
FACTS OF THE CASE:
The appealing party/appellant Rupendra Kashyap is the proprietor of M/S Som Sudha Prakashan and the arrangements in the distribution of books. He asserts that he is an exclusive licensee of Central Board of Secondary Education regarding the distribution of past year question papers for classes X and XII directed from 1990 onwards and in this way inside the significance of Section 54 of the Copyright Act of 1954, is the first and first proprietor of the copyright and nobody other than the plaintiff party could distribute or republish the previous year question papers of the particular classes of the tests led by CBSE. In any case, it is asserted that by distributing and repeating the inquiry papers, respondents (Jiwan Publishing House) have encroached on the petitioner’s copyright and subsequently have submitted a break of the privileges of the plaintiff party. The CBSE has totally on the side of the appellant/plaintiff on the equivalent.
- Whether the question paper set by CBSE, can be the subject matter of Copyright?
- Who would be the owner of the Copyright matter?
- Whether the respondent has infringed the plaintiff’s, right?
- Whether the plaintiff has any cause of action against the respondent?
RULE OF LAW:
Section 2 (j) of the Copyright Act, 1957
Section 17 of the Copyright Act, 1957
Section 17 (dd) of the Copyright Act, 1957
The “original literary work” can be claimed under Section 13 of The Copyright Act, 1957. The condition for that is the work is totally original of the author and not copied from any source. Thus, the Court held that examination paper for students also comes under the purview of Section 13 of the Act and is considered as the subject matter of Copyright. Furthermore, the Court held that the examination papers were set by a body of Board (CBSE) and the work of printing and publishing was given to the appellant under a contract. The board (CBSE) is considered as “Public Undertaking” under section 28 of the Act because it’s functioning under the direction of the Central Government and for public purposes. The High Court held that the CBSE board is the first owner of the examination paper and examination papers are the subject matter of copyright under Section 17 9dd) of the Act. There was a contract between the board CBSE and the appellant to publish and printing of the examination paper. The Appellant is an “exclusive licensee” of the copyright matter. The word “exclusive licensee” defined under Section 2 (j) of the Copyright Act as a license which confers on the licensee or persons authorized by him to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work, and “exclusive licensee” shall be construed accordingly. Under Section 14, copyright means exclusive right in case of literary work to do the following acts (amongst others):
(I) to reproduce the work in any material form;
(ii) to publish the work.
(iii) to produce/reproduce or perform or publish any translation of the work and
(iv) to make any adaptation of the work. The above-said insignia of the copyright is found to have been licensed to the plaintiff to the exclusion of all other persons and therefore, the plaintiff is an ‘exclusive licensee’ entitled to maintain an action for infringement of copyright.
Thus, the appellant is also the lawful owner of the subject matter of the copyright and his right is infringed by the respondent by publishing and printing the question paper.
The Court held that the appellant has a valid cause of action against the respondent. The court granted an Interim Injunction against the respondent and restrained further infringement of the right of the appellant.