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(Assignment towards the partial fulfilment of the assessment in the subject of General Principles
of Intellectual Property Rights)


SUBMITTED BY: SUBMITTED TO:
Devvrat Singh Shekhawat Mrs. Abhilasha Kumbhat
Roll no. 720 Assistant Professor
Semester VI Faculty of Law



National Law University, Jodhpur
Winter Semester
(January-May 2012)


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FACTS OF THE CASE
The Managing Director of the plaintiff, Shri Harbhajan Singh Lamba, and the
Managing Director of the defendant,. Shri Rajinder Singh Lamba, are the real brothers
and both of them started a partnership firm known as Lamba Brothers in the year 1960
for the manufacture of Power Presses (Machines), Notching presses, shearing
machines and bending machines under the trade mark E.
The said partnership was dissolved on 1.4.1985 vide Deed of Dissolution dated
20.10.1985. After dissolution of the partnership, Shri Harbhajan Singh Lamba started
his own business of manufacturing and merchandise of the aforesaid machines by
inviting his son as his partner in the business. Both the brothers are in litigation with
respect of the trade mark Elbee which is separately being pursued by them.
The plaintiff, to promote its business, introduced catalogues which consist of technical
data, pictures and technical specifications tables (along with its sistemconcerns). The
plaintiff published one such Catalogue for its "C" and "H" Frame's Range of Presses in
the year 1990.
Shri S.K. Bassi was commissioned to create and design the same. The arrangement
and layout, the words, pictures and specifications tables in the said catalogues were
created and designed by Shri Bassiin July, 1990 for and on behalf of the plaintiff. Shri
Bassi created the literary and artistic work contained in the catalogues for the plaintiff
who is now the owner of the catalogues. These catalogues are entitled "From the
House of Lamba and "C" and "H" Frame's Range of Presses. The second page thereof
consists of the in formative data and each paragraph begins with a word printed in
bold, the primary purpose being, to give the customer an idea of what the paragraph
speaks about.
Throughout the catalogues one can see technical data along with either pictures or
drawings in support which were carefully created and in this process substantial skill
and labour were employed in designing these catalogues by the plaintiff. The plaintiff
has also spent a substantial amount in creation of such catalogues. These catalogues
have been in continuous and extensive use by the plaintiff till now.
However, in the month of June, 1993, the plaintiff learnt that the defendant had started
copying its aforesaid catalogues. After obtaining one such catalogue of the defendant,
the plaintiff was shocked to note that the defendant had copied the plaintiff's
informative data word to word. The defendant had even copied the manner in which
the plaintiff had used the aforementioned bold word sat the beginning of each
paragraph. In substance, according to the plaintiff, the plaintiff has a copyright in the
catalogues which is literary and artistic work and that the same has been infringed by
the defendant and Therefore, the plaintiff has been constrained to file the suit.
When the matter came up for admission before Court on 30.8.1993, after hearing the
Counsel for the appellant-plaintiff, the learned Single Judge declined to entertain the
suit for infringement of copyright in the 'brochure' for elbee machines of the plaintiff
merely on the ground that it was essential that for copyright to exist, there must be
compliance with the requirements of the statute and claim to copyright made upon the
copyrightable matter before any action in copyright could be sustained, and perfected
by statutory remedies. In this case no reservation claim of copyright in the
catalogue/brochure in recognized method has been claimed, e.g., mark C, or the
expression copyright reserved or copyright: Lamba Brothers (P) Ltd. There is no such
reservation; and secondly under Section 18(14) of the Press and Registration of Books
Act, 1867, the name and address of the proprietor of the copyright or of any portion of
such copyright has to be entered, which has not been entered in the present case.

ISSUES BEFORE THE COURT
1) Does the Catalogue/ Brochure of the plaintiff protected by the Copyright Act, 1957?

JUDGMENT OF THE COURT & REASONS:
In view of the Copyright Act and in view of the Press and Registration of Books Act,
1867 and in view of Article III of Copyright Convention revised at Paris, it is essential
that for copyright to exist, there must be compliance with the requirements of the
statute and claim to copyright made upon the copyrightable matter before any action in
copyright can be sustained, and perfected by statutory remedies.
In this case, there is no claim for copyright in the brochure. This brochure is a single
sheet of paper, having a number of folds. In my view, no copyright can be claimed on
the basis of mere fact that there is some printed matter which has got words and
sentences, photographs and tables but has no claim of the copyright.
The submissions of the counsel regarding Berne Convention that there are no
formalities required for claim to copyright is not acceptable, as when no claim has
been recorded, and no claim of reservation of copyright in printed matter would
amount to a disclaimer of copyright.
In this view of the matter, the judge declined to entertain this suit for infringement of
copyright in the "brochure" for ELBEE machines of the plaintiff.
Suit dismissed.

FINDINGS OF THE HIGH COURT IN APPEAL
CONTENTIONS OF THE APPELLANTS:
That there is no provision in the Act which provides for the reservation claim of copyright in
the catalogue/brochure in any recognized method as referred to by the learned Single Judge.
However, in the plaint, the appellant-plaintiff has clearly stated that they have such a
copyright and that copyright has been infringed and under the provisions of the Copyright Act
it falls within the meaning of copyright since it is literary and artistic work. Furthermore, the
name and the owner of the copyright and address are also shown on the catalogues. Learned
Counsel further submits that Press and Registration of Books Act, 1867 is not applicable in
the present case in the first instance and even if it is assumed so then there is sufficient
compliance of Section 18(14) of the Press and Registration of Books Act, 1867, i.e., the name
and address of the proprietor of the copyright is mentioned in the catalogues of the appellant.

JUDGMENT (APPLICATION OF LAW)
The learned Single Judge has relied upon the Universal Copyright Convention revised at Paris
in 1971, Article III, and according to the learned Judge, Article III requires the plaintiff to
claim copyright mentioning the name of the author; year of publication; symbol (C);
accompanied by name of the author or there should be any other reasonable notice for claim of
copyright. On the other hand, learned Counsel for the appellant relies upon Article 5(2) of the
Berne Convention which provides that enjoyment and the exercise of these copyrights shall
not be subject to any formality. In our opinion, it is not necessary to decide this question at
this stage as in the suit the plaintiff has alleged that the copyright subsists in its favor and there
is infringement by the defendant of such copyright and it has right to maintain the suit. There
is no bar to the maintainability of the suit under any existing law and, Therefore, in our
opinion, the learned Judge has erroneously declined to entertain the present suit.
HELD
Appeal is allowed, the impugned judgment dated 30.8.1993 of the learned Single Judge is set
aside and the suit is restored
RATIO DECIDENDI
"Suit filed in Court shall not be declined, if it is based on proper substance."






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FACTS OF THE CASE:
Plaintiff Devidas Tularam Bagul is a well known writer in the field of Marathi Literature.
He is also a photographer, which art appears to have developed by him as a hobby. He
studied poems of Shri Suresh Bhatt and was impressed and therefore he took the
photograph of Shri Suresh Bhatt.
With his background he tried to show high lights, intensity of light, direction of light and
vision and has produced artistic effects in the said photograph by showing a peculiar
background,
One publisher known as Mauja Prakashan sought his permission to publish the same on
the book of Rang Maza Vegala which is the collection of poems of Shri Suresh Bhatt.
One other editor also took his permission but newspaper Kesari did not take his
permission before publishing the said photograph. Since he is the author of the
photograph he holds copyright in the said photograph.
The plaintiff was very fascinated by Shri Suresh Bhatts work and had informed him that
he had clicked and developed the photograph of his.
The newspaper didnt acknowledge his work and didnt agree to apologize to him. The
plaintiff didnt want monetary relief. The only thing he wanted was the recognition of
him being the copyright holder of that photograph. They wanted the position on this issue
to be clear
ISSUE INVOLVED:
Whether the plaintiff has a copyright over the photograph?
REASONING BY THE RESPONDENTS:
The photograph was published in the newspaper as it was a current event. They published
the news along with the photograph. The plaintiff has no copyright in the photograph and
even otherwise the defendants are not liable for infringement of copyright because they
were not aware and had no reliable grounds to suspect that the copyright of the plaintiff
subsists in the said photograph.
IMPORTANT ASPECTS OF THE MATTER:
Admittedly the photograph was taken by the plaintiff with consent of Shri Suresh Bhatt.
It was published on the cover jacket of the book and from there defendants have copied
it.
From writing below the photograph the defendants became aware that it was taken by the
plaintiff.
While publishing in the newspaper they never put symbol C in a circle to show that
copyright exists.
The plaintiff had requested them that they should publish in their newspaper that the said
photograph was taken by the plaintiff. They did not make any inquiry and refused to give
credit to the plaintiff.
LAW INVOLVED:
The Copyright Act 1957 section 2 which is an interpretation clause shows that artistic
work as per clause (o) means : a painting, a sculpture, a drawing (including a diagram,
map, chart or plan), an engraving or a photograph, whether or not any such work
possesses artistic quality. And as per clause (d) sub clause (iv) the author in the case of
photograph means the person taking the photograph. In case a copyright exists, it subsists
for a period of about 40 years, as per section 17 of the author of the work is the first
owner of the copyright therein.
As per section 55 civil remedies for infringement of copyright are claiming damages and
injunction. The proviso to the section states that if the defendant proves that at the date of
the infringement he was not aware and had no reasonable ground for believing that
copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other
than an injunction. This is a case in which the appearance of the plaintiffs name below
the photograph was a sufficient notice to the defendants. As per law the plaintiff is
admittedly the author of the copyright in the photograph.
Absence of symbol(c) in a circle as it is not the requirement of the Indian Copyright Act
and if it is the requirement of similar law in other country, we need not consider the
arguments in that respect at all. In fact, in this case after the publication, the defendants
were fully made aware by the plaintiff of his copyright. The defendants did not bother
even to take legal advice and even to know what is the legal position. The defendants
were and are not ready to give the plaintiff due credit by acknowledging the fact that he is
the author of the photograph.

JUDGEMENT: Appeal dismissed with cost and the court held that the single judge was right
in his analysis of the legal position and upheld his reasoning.
COMMENT:
Both the cases deal in particular with the issue of claiming of copyright. As we know it is a
settled law that catalogues and photographs do form the subject matter of copyrightable work
under the head of literary and artistic work respectively. We are thorough in our understanding
that it is not the idea that is protected under copyright but the expression of an idea. And when
we talk about originality then what is kept in mind is that it should not be a substantial copy of
the previous work. Quality of work doesnt matter. Keeping all these basic premises in mind I
would like to talk about claiming of copyright now.
Now we must understand that Indian copyright law does not talk about claiming of copyright
anywhere. It is nowhere mentioned or talked about in our laws. Though there are international
standards which do recognize some forms in which a copyright can be claimed which have been
discussed in cases discussed above.
Now important thing is that India is a party to both Berne convention and Paris convention but
still courts have been reluctant enough to apply them in the cases here. Courts have not gone into
the merits of the case and have either dismissed or allowed them on the issue of maintainability
in the present case. There has been no case in this regard after Lamba Brothers. Surprisingly they
never went into the issues in detail.
The need is to revisit our laws and to look into our obligations at the international level and try to
harmonize the two laws.