Grant of Pre-Publication Injunction : Principles Discussed

Justice Varma

Justice Yashwant Varma recently in Sushil Ansal v. Endemol India P. Ltd. & Ors. [2023/DHC/000205] had occasion to examine the law in relation to grant of pre-publication injunction in relation to a web series concerning the Uphaar tragedy. While considering various Indian and international precedents on the subject, Justice Varma rejected the plea of Sushil Ansal to injunct the publication of the web series. The operative part of the decision reads as under:

18. At the outset, it would be apposite to recall the fundamental precepts which govern the grant of ad interim injunctive relief. Apart from the often repeated trinity test of prima facie case, balance of convenience and irreparable injury, courts are also bound to weigh in consideration whether the issuance of the injunction would cause greater harm and perpetuate injustice, the time when the plaintiff first derived knowledge of the offending material, whether the plaintiff, if not having acquiesced, remained inert or failed to take proactive action for protection of its rights and whether it has approached the Court in good faith. These aspects assume greater significance when what is sought is a pre-publication or broadcast injunction.

19. A pre-publication or broadcast injunction would essentially be sought at a stage when the offending material is either unavailable to be comprehensively reviewed and assessed or where it is alleged that there is a grave, imminent and immediate possibility of violation of rights. In such a situation the following factors would clearly be entitled to be accorded primacy- the promptitude with which the plaintiff approaches the Court, its obligation to establish, at least prima facie, that the impending publication/broadcast is completely divorced from the truth, replete with falsehood, or evidences an imminent vilification of the individual.

20. If the Court finds that the plaintiff has either failed to initiate action with promptitude or approached the court at the first available opportunity, that would be a circumstance which would weigh heavily against the grant of an ad interim injunction. Further, if the court were to find that the material which is likely to be broadcast or published already exists in the public domain and has existed as such for a considerable period of time without an objection having been raised, that too would detract from the right of the plaintiff to seek ad interim injunctive relief.

21. On a more fundamental plane, the Court would also take into consideration the imperatives of striking a balance between the aspects of freedom of speech and expression, the dissemination of information amongst the public at large on the one hand and the injury likely to be caused to the individual. It is in the above context that courts have formulated the ―high pedestal‖ test when it comes to the grant of a pre-publication or broadcast injunction. Courts have deliberately formulated the high threshold test because the injunction would essentially be sought at a stage when the offending material is either not available to be evaluated and examined or where it is impracticable to arrive at even a prima facie conclusion whether the content is defamatory or libelous. Courts at that stage are essentially left to grapple at straws, called to base their decisions on unsubstantiated and unproven allegations and essentially asked to issue a restraint on the assumption that what would be published or broadcast would be defamatory, slanderous or amounting to libel. Such a tenuous approach cannot possibly be countenanced when a court of law is called upon to grant injunctive or equitable relief.

Contract of Personal Service : Not Enforceable in law being in Restraint of Trade : Delhi High Court Rules

Justice Amit Bansal
Delhi High Court

Justice Amit Bansal recently [in Global Music Junction P. Ltd. v. Annapurna Films P. Ltd. - Neutral Citation No. 2023/DHC/000064] delivered a judgment examining the law relating to restraint of trade under S. 27 of the Indian Contract Act, 1872. The Court was examining the claim of a Plaintiff who was seeking restraint on an artist from breaching exclusivity clauses in the agreements signed between the parties. The Court held that such clauses in agreements would tantamount to a restraint of trade and would fall foul of S. 27 of the Indian Contract Act, 1872. The relevant findings of the Court are as under:

15. Before proceeding further, I wish to analyse the legal position with regard to enforcement of negative covenants in contracts of personal service and grant of interim injunction.

16. At the outset, a reference may be made to Section 27 of the Indian Contract Act, 1872:

"27. Agreement in restraint of trade void.--Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. 

Exception 1.--Saving of agreement not to carry on business of which goodwill is sold.--One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein:

Provided that such limits appear to the Court reasonable, regard being had to the nature of the business."

17. Senior counsel appearing on behalf of the plaintiff company has extensively relied upon the judgment of the Supreme Court in Niranjan Shankar Golikari v. Century Spinning and Manufacturing Co. Ltd., (1967) 2 SCR 378, in support of his submission that reasonable restrictions can be imposed for the protection of the covenantee during the period of the contract. Attention of the Court has been drawn to the reference made to the judgment of Warner Brothers Pictures v. Nelson, (1937) 1 KB 209, in Niranjan Shankar Golikari (supra), where a film artist despite entering into a contract to render her exclusive service to the plaintiff during the period of the contract, entered into a contract with a third person in breach of the provisions of the contract and in these circumstances an injunction was granted.

18. The dicta of Niranjan Shankar Golikari (supra) is contained in paragraph 17, which is set out below:

"17. The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract. Negative covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under Section 27 of the Contract Act. A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not therefore a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one- sided as in the case of W.H. Milsted & Son Ltd. Both the trial court and the High Court have found, and in our view, rightly, that the negative covenant in the present case restricted as it is to the period of employment and to work similar or substantially similar to the one carried on by the appellant when he was in the employ of the respondent Company was reasonable and necessary for the protection of the company's interests and not such as the court would refuse to enforce. There is therefore no validity in the contention that the negative covenant contained in clause 17 amounted to a restraint of trade and therefore against public policy."

19. In Niranjan Shankar Golikari (supra), since the employee was still in employment of the respondent company, the grant of injunction was upheld by the Supreme Court. However, in the present case, the situation is entirely different as the contract has been terminated by the Artist. What needs to be examined is if the said termination by the Artist was valid or not.

Comparative Advertising & Disparagement : Delhi High Court

Justice Prathiba M. Singh, Delhi High Court

Justice Prathiba M. Singh of the Delhi High Court has recently in Zydus Wellness Products Ltd. v. Dabur India Ltd. (Neutral Citation: 2022/DHC/005793) has examined the law of disparagement in relation to comparative advertising. The Court has examined the leading authorities on the subject and has held that the intent and storyline of the advertisement has to be seen along with the intention to denigrate the product of a competitor. The relevant excerpts from the judgment are reproduced hereunder:

34. The term 'comparative advertising' has been defined in Article 2 of the Advertising Directive of the EEC as "any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor". This definition has been affirmed and relied upon by a ld. Single Judge of this Court in Havells India Ltd. v. Amritanshu Khaitan MIPR 2015(1) 0295. In the case of Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd. 2006 (36) PTC 307 (Del.) a ld. Single Judge of this Court has defined comparative advertising as an advertisement where a party advertises its goods or services by comparing them with the goods and services of another party. This is generally done by either projecting that the advertiser's product is of the same or superior quality to that of the compared product or by denigrating the quality of the compared product.

35. Thus, there has to be either express or implied reference to a competitor or its goods or a product category. A mere fleeting allusion to some unidentifiable product or product category cannot constitute `comparative advertising'. For an advertisement to be classified as comparative advertisement, there ought to be some attributes of a product which are depicted in the commercial such as the container, coloured packaging, mark, logo identifying the Plaintiff's product directly or indirectly. Even if such elements are absent, for the Plaintiff to claim generic disparagement, there ought to be some indicators of identification of the product category at least.

36. In the case at hand, the glass which is shown in the hand of the mother giving the generic orange drink is not identifiable in any manner with the Plaintiff or even with an orange energy drink. It could even be an orange soft drink, orange crush, orange squash, orange mocktail, orange juice, etc., Even on careful repeated watching of the impugned TVC by the Court, it is not clear as to what is the drink being stirred in the glass. It seems to be an orange-coloured drink which is put into a transparent glass and nothing more. However, in the conversation between the mothers after the race finishes, the category of the generic product being depicted has some reference when one of the mothers asks "Both of them drank the same orange glucose then how did your daughter win so easily?" Thus, the impugned TVC identifies 'orange glucose' as the product category towards which the advertisement in question is directed. Therefore, the impugned TVC can be classified as 'comparative advertising' to the broad orange glucose product category.

37. In view of this finding, the next question that needs to be probed by the Court is whether the impugned advertisement is disparaging in nature. For the purpose of examining disparagement, comparative advertising can be categorised in the following categories:

i. Where there is a direct comparison with a competitor's product. ii. Where there is a comparison with a specific product which can be deciphered due to some references such as a similar mark, a similar logo, similar packaging, similar container, etc. iii. Comparison with a product of related category with no direct reference.

iv. Where there is a general comparison without an identified product category as a whole.

38. Numerous decisions relating to comparative advertising and disparagement have been cited by the parties. Broad principles have been laid down repeatedly in these decisions. Principles of comparative advertising laid down in these decisions would have to be applied depending upon the category of comparative advertising in which a particular case would fall.

39. Disparagement is an act of belittling someone's goods or services with a remark that is misleading. The law relating to disparaging advertisements is now well settled. It is open for a person to exaggerate and highlight the qualities and features of his own goods, but it is not open for a person to belittle and disparage the goods of another. There is a plethora of judgments which have been cited before this Court by ld. Sr. Counsels for both the parties. In the case of Pepsi Co. v. Hindustan Coca Cola 2003 (27) PTC 305 (Del.) a ld. Division Bench of this Court held that the following factors are required to be considered while deciding the question of disparagement: i. Intent of the commercial; ii. Manner of the commercial; iii. Story line of the commercial and the message sought to be conveyed by the commercial.

40. In Dabur India v. Colortek Meghalaya (2010)167 DLT 278 (DB) the said principles were amplified/ restated by another ld. Division Bench of this Court in the following terms:

i. The intent of the advertisement - this can be understood from its story line and the message sought to be conveyed. ii. The overall effect of the advertisement - does it promote the advertiser's product or does it disparage or denigrate a rival product?

In this context it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect. iii. The manner of advertising - is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.

41. It is on the basis of the above principles that this Court needs to ascertain whether the impugned TVC is disparaging or not. Generic disparagement is recognised as disparagement under the law, however, in almost all cases where generic disparagement has been held to be objectionable there has been some reference or some usage or depiction which has clearly led to the conclusion that it is the aggrieved party's product or the entire product category is being referred to. For example:

• In one of the earliest decisions recognising generic disparagement, Karamchand Appliances Pvt. Ltd. v. Sh. Adhikari Brothers and Ors. 2005 (31) PTC 1 (Del) in the impugned advertisement, the 'All Out Pluggy' device was clearly identifiable. • In Dabur India v. Colgate Palmolive India Ltd. MANU/DE/0657/2004 the advertisement in question explicitly identified the product category 'Lal Dant Manjan' powder. • In Dabur India Limited v. Emami Limited 2004 (75) DRJ 356, the impugned advertisement identified the product 'Chayawanprash' and asks the viewers to "FORGET Chayawanprash IN SUMMERS, EAT Amritprash INSTEAD".

• In Godrej Consumer Products Limited v. Initiative Media Advertising 2012 Vol. 114(4) Bom. LR 2652 in the advertisement, the label / device was clearly recognisable and identifiable as belonging to the Plaintiff therein.

• In Hindustan Unilever Limited v. Gujarat Co-operative Milk Marketing Federation Ltd. MANU/MH/1197/2017 the product, 'Frozen Dessert' was identified in the advertisement. • In Dabur India v. Emami Ltd. 2004 (75) DRJ 356 the entire class of Chayawanprash was identified in the advertisement.

42. It is usual for advertisers and companies marketing and selling products to portray their products as being superior. In the process of depicting superiority, a generic comparison ought to be permitted and creativity cannot be stifled. A television commercial is not to be analysed in a hyper critical manner. A commercial would have to be viewed as a whole from the view of an ordinary consumer or viewer. The message being portrayed in the commercial would have to be seen and if the message is not derogatory, no objection can be raised.

43. In the opinion of the Court, cases where there is a direct comparison and denigration of the competitor's product would fall in a completely different category as against those cases where there are allusions or indirect references. Allegations of disparagement in cases where comparison is alleged with an unrelated category as a whole is also objectionable. However, in the case of generic comparison with a product of related / same category without any direct reference to any competitor, the freedom for advertisers would be greater than those cases falling in other categories. This is because in order to portray a particular product as being superior or better than existing products, a generic comparison highlighting the strength of its own product without launching a negative campaign against its competitors ought to be permissible failing which the strength of the advertisement could itself be considerably diluted. The purpose of advertising any product is for marketing the attributes of that product. Such attributes could be unilateral or relative in a generic manner. It cannot be said that every generic comparison would be referencing to the market leader which would, in the opinion of the Court, be curtailing freedom of advertising to a considerable extent. Mere allusions, in the absence of a decipherable comparison would not be sufficient to make out a case of generic disparagement. An advertiser ought to have the freedom to make advertisements with generic comparison highlighting the features of its own product and if the same is done without an allusion to any market leader, objection cannot be raised unless representation being made is absolutely false or misleading.

44. Viewed from this perspective, the following decisions of the ld. Division Benches of this Court are relevant in the present factual matrix: I. In Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. and Ors. (supra), the products concerned were 'GOOD KNIGHT NATURALS' and 'ODOMOS'. There was no overt or direct reference to 'ODOMOS' in the entire commercial. The content of the commercial showed that the competing product was causing rashes, allergy and was sticky, which was a serious depiction. However, the ld. Division Bench held that there was nothing in the advertisement to suggest that the commercial denigrated the products of the Appellant therein. The observation of the ld. Division Bench are as under:

"5. The submission of the Appellant is that its product Odomos is an extremely popular mosquito repellant cream and it enjoys over 80% of the market share all over the country and in some parts of the country it enjoys a 100% market share. The sales of the Appellant's product run into crores of rupees and the advertisement and promotion expenses also run into crores of rupees.

6. It is averred that the commercial of the Respondents' product was telecast on a news channel on 8th October, 2009. We are told that it has appeared on several occasions thereafter. According to the Appellant, the commercial disparages its product and, therefore, the Respondent should be injuncted from further telecasting it. It is submitted that even though there is no direct or overt reference to the Appellant's product, since the Appellant's product enjoys a huge market share, the commercial is obviously targeting it. Serious objection was taken to the suggestion in the commercial that the Appellant's product causes rashes, allergy and is sticky.

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18. On balance, and by way of a conclusion, we feel that notwithstanding the impact that a telecast may have, since commercial speech is protected and an advertisement is commercial speech, an advertiser must be given enough room to play around in (the grey areas) in the advertisement brought out by it. A plaintiff (such as the Appellant before us) ought not to be hyper- sensitive as brought out in Dabur India. This is because market forces, the economic climate, the nature and quality of a product would ultimately be the deciding factors for a consumer to make a choice. It is possible that aggressive or catchy advertising may cause a partial or temporary damage to the plaintiff, but ultimately the consumer would be the final adjudicator to decide what is best for him or her.

19. Having said this, we are of the opinion after having gone through the commercial not only in its text (as reproduced above) but also having watched it on a DVD that there is absolutely nothing to suggest that the product of the Appellant is targeted either overtly or covertly. There is also nothing to suggest that the commercial denigrates or disparages the Appellant's product either overtly or covertly. There is also no hint whatsoever of any malice involved in the commercial in respect of the Appellant's product - indeed, there is no requirement of showing malice.

20. Learned Counsel for the Appellant submitted before us that since his client has over 80% of the market share in the country and a 100% market share in some States, the obvious target of the commercial is the product of the Appellant. In our opinion, this argument cannot be accepted.

The sub-text of this argument is an intention to create a monopoly in the market or to entrench a monopoly that the Appellant claims it already has. If this argument were to be accepted, then no other mosquito repellant cream manufacturer would be able to advertise its product, because in doing so, it would necessarily mean that the Appellant's product is being targeted. All that we are required to ascertain is whether the commercial denigrates the Appellant's product or not. There is nothing in the commercial to suggest a negative content or that there is a disparagement of the Appellant's product. The commercial merely gives the virtues of the product of the Respondents, namely, that it has certain ingredients which perhaps no other mosquito repellant cream has, such as tulsi, lavender and milk protein. While comparing its product with any other product, any advertiser would naturally highlight its positive points but this cannot be negatively construed to mean that there is a disparagement of a rival product. That being so, whether the Appellant's product is targeted or not becomes irrelevant.

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23. Finally, we may mention that Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. 1999 (19) PTC 741 was referred to for the following propositions relating to comparative advertising:

(a) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.

(b) He can also say that his goods are better than his competitors', even though such statement is untrue.

(c) 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.

(d) He however, cannot, while saying that 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.

(e) 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.

These propositions have been accepted by learned Single Judges of this Court in several cases, but in view of the law laid down by the Supreme Court in Tata Press that false, misleading, unfair or deceptive advertising is not protected commercial speech, we are of the opinion that propositions (a) and (b) above and the first part of proposition (c) are not good law. While hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if does so, the advertiser must have some reasonable factual basis for the assertion made. It is not possible, therefore, for anybody to make an off-the-cuff or unsubstantiated claim that his goods are the best in the world or falsely state that his goods are better than that of a rival."

II. In Colgate Palmolive Company and Ors. v. Hindustan Unilever Ltd.

(supra) the competing products were 'COLGATE' & 'PEPSODENT'. In this case, the commercial clearly depicted 'COLGATE' and made a direct comparison with 'PEPSODENT'. Customer's imagination was not needed to see as to in what manner the comparison was being made with what product in the said case. 'PEPSODENT' claimed to have 130% germ attack power in comparison with 'COLGATE'. This was held to be not merely hyperbole and relying upon Lakhanpal National v. M.R.T.P Commission (1989) 3 SCC 251 it was held that the same was an unfair trade practice. The observation of the ld. Division Bench is as under:

"58. In our view, even if, we assume that the representation that Pepsodent is more effective in combating germs, 4 hours after brushing, in comparison with Colgate ST, is correct even then, prima facie, the advertisement would be disparaging as it also conveys the message that Colgate is ineffective and lacks the requisite quality to maintain oral hygiene and combat tooth decay and its usage, as depicted by the Colgate child, would result in the user ending up with a tooth related ailment. As explained in Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. & Anr.

(supra) a trader cannot, while saying that 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. In our view, this is precisely what the impugned print advertisement conveys by its advertisement theme and the visual story."

III. The most recent decision of the ld. Division Bench of this Court in Reckitt Benckiser (India) Pvt. Ltd. v. Hindustan Unilever Limited (supra) dealt with a case where toilet cleaners 'HARPIC' and 'DOMEX' were being compared in an advertisement. A perusal of the storyboard in the said case would show that there was a direct reference to 'HARPIC' product and it was suggested that 'HARPIC' does not address the problem of bad odour. The actual 'HARPIC' product was also shown in the said commercial. The commercial also depicted a child who is expressing displeasure by asking "Toilet se badbu nahi aayengi?" to enquire about the bad odour which would emanate if 'HARPIC' is used. In the said decision, the ld. Division Bench has held as under:

"33. On a plain viewing, it is clear that the message sent by the advertiser is that Harpic does not address the problem of bad odour. The astonished expression of the child and his gesture of holding his nose while asking the question whether the toilet will not stink and the mother of the child getting concerned and worried, sends out a clear message that if you use Harpic, the toilet will continue to stink because the mother, who is otherwise regularly using Harpic, has not been able to address the problem of foul odour persisting in their toilet. The latter part of the impugned TVC-1 then shows a toilet bowl with discolouration possibly reflecting bad odour and the voice over saying "Kyoki toilet ki badbu se ladne ke lie DOMEX me hai fresh guard technology". The remaining part of the impugned TVC-1 is about the product Domex and its quality to combat bad odour for a longer period of time.

34. The impugned TVC-1 not only projects a message that Domex fights odour for a longer period of time, it also sends a clear message that Harpic does not address the problem of foul smell that emanates from toilets. The manner in which the impugned TVC-1 is structured, first, sends a message that Harpic only cleans without addressing the problem of bad odour and thereafter, sends the message that whoever chooses Harpic would have to live with their toilets smelling foul. This is a message that disparages Reckitt's product and, in our view, cannot be permitted.

35. The finding of the learned Single Judge that the impugned TVC-1 does not denigrate Reckitt's product is erroneous and cannot be sustained. The latitude available in advertising is wide but does not extend to denigrating the product of one's competitor.

36. By an order dated 01.12.2021 passed by this Court, HUL was restrained from airing the impugned TVC-1. We make the said order absolute. The same shall continue till disposal of the suit."

The facts in Reckitt Benckiser (India) Pvt. Ltd. v. Hindustan Unilever Limited (supra) are clearly distinguishable from the facts the present case as there is no direct comparison with the Plaintiff's product in the case at hand. No image of the Plaintiff's product has been used and the qualities being attributed to 'HARPIC' are also completely derogatory in the said case. Moreover, nowhere in the impugned TVC the Plaintiff's or for that reason any product is being adversely commented upon as was the scenario before the ld. Division Bench. In the impugned TVC, only the features of the Defendant's product are highlighted. Even the ld. Division Bench in Reckitt Benckiser (India) Pvt. Ltd. v. Hindustan Unilever Limited (supra) has highlighted the difference between embellishing one's own product and calling the competitor's products as bad or inferior. The relevant portion of the said judgment reads as under:

24. In a comparative advertisement, it is open for an advertiser to embellish the qualities of its products and its claims but it is not open for him to claim that the goods of his competitors are bad, undesirable or inferior. As an illustration, in a comparative advertisement, it is open for an advertiser to say his goods are of a good quality but it is not open for an advertiser to send a message that the quality of the goods of his competitor is bad. As observed by the Chancery Division in the case of De Beers Abrasive Products Ltd. and Others v. International General Electric Co. of New York Ltd. and Another, it is open for a person to claim that he is the best seller in the world or a best seller in the street but it is not open for him to denigrate the services of another. Thus, it is not open for an advertiser to say "my goods are better than X's, because X's are absolutely rubbish". Puffery and Hyperbole to some extent have an element of untruthfulness. If a tailoring shop claims that he provides the best tailored suits in the city, the same may be untruthful. However, it is apparent to anyone who reads or hears this statement that it is puffery. Such statements or taglines are neither held out nor understood as a representation of unimpeachable fact.

It is obvious that the person availing services from the tailoring shop, as mentioned above, cannot maintain an action of misrepresentation. However, when it comes to statements made by an advertiser in respect of the goods of his competitors and other persons, the latitude available to an advertiser is restricted. Whilst it is open for the tailoring shop to state that it provides the best tailored suit in the city; it is not open for it to advertise that the other tailoring shops in the street lack the necessary skill and their suits are ill tailored.

25. A comparative advertisement would always involve the statement that the goods of the advertiser are better in some aspects than that of the competitor. But there is line that an advertiser cannot cross. He cannot disparage or defame the goods of his competitor.

26. There may be cases where certain features of an advertiser's product may be demonstrably better than the features of his competitor. In such cases, it is permissible for an advertiser to advertise and highlight these features. The message must clearly be to highlight the superior features of his product while ensuring that the product of his competitor is not disparaged or defamed.

45. An analysis of the above three Division Bench judgments of this Court shows that in the case of a commercial which has no direct or overt reference to a competitor's product, there cannot be a presumption that the product of the Plaintiff is being targeted. The ld. Division Bench observes in Dabur India Ltd. v Colortek (supra) that where there is no overt or covert reference, merely on the basis of market share it cannot be presumed that the advertisement is directed towards the market leader. In the opinion of this Court, the reasoning and rationale in Dabur India Ltd. v. Colortek (Supra) fully applies to the facts of the present case. In fact, in Dabur India Ltd. v. Colortek (Supra) the allegation of qualities being attributed to the competitor's product of causing rashes, allergy and stickiness were far more derogatory than the portrayal in the impugned TVC.

46. Applying the ratio of the judgments discussed above, this Court is of the view that the impugned TVC merely highlights the qualities of the Defendant's product and it does not disparage any orange glucose powder drink. Disparagement cannot be a far-fetched inference. In the impugned commercial, the mother asks a probing question as to how when her daughter drank the same orange glucose, the other lady's daughter won the race. This is being interpreted by the Plaintiff as a comparison as it leads to an inference that 'DABUR GLUCOPLUS-C ORANGE' is more effective, hence, superior and the other products including the Plaintiff's product are ineffective, hence, inferior - thus disparaging. The Plaintiff's case is that the gestures of disappointment and frustration on the face of the mother whose daughter lost the race is sufficient to infer disparagement. This, in the opinion of the Court, is far-fetched. It would not be proper for the Court to flip the coin to conclude - 'mine is better' as 'yours is bad'. The comparison being made in the impugned TVC might be unfavourable to the Plaintiff, but it cannot be held to be disparaging. The intent and the overall effect of the advertisement in question seems to be to promote the Defendant's product and not to denigrate the Plaintiff's or any other manufacturer's product.

47. The next argument of the Plaintiff that there is a serious misrepresentation of fact also does not hold ground. The admitted position is that the Defendant's product does have 25% more glucose than the  Plaintiff's product. The impugned advertisement is by and large truthful and there is no falsity involved. Therefore, there is no serious misrepresentation of fact on part of the Defendant in the impugned TVC. The argument of the Plaintiff that more glucose does not translate into higher energy also does not hold ground for two reasons. First, the storyboard of the advertisement merely shows "25% more glucose in every sip". This is not misrepresentative considering the contents of the Defendant's drink. Second, as far as the claims of 'instant energy' is concerned, the Plaintiff's own product packaging, and its advertisements which have been placed on record, show that the Plaintiff's own stand is that glucose gives instant energy. The Plaintiff cannot take a different stand for its own product and Defendant's product. Moreover, the storyboard shows that in the impugned TVC it has been said "this has 25% more glucose than your glucose powder, which gives more instant energy + 2 times micronutrients", however, it was brought to the attention of the Court that the impugned TVC, which is Bengali, does not use the phrase 'gives more instant energy' and merely claims that it 'gives instant energy'. Thus, the overall message sought to be conveyed by the Defendant vide the impugned TVC is that its product has 25% more glucose which gives instant energy.

48. In the absence of any disparaging uttering, still or image in the impugned TVC, this Court is unable to arrive at a conclusion merely on the basis of the market share of the Plaintiff that the Plaintiff's product is being disparaged or there is any generic disparagement. The impugned TVC when viewed from the perspective of an ordinary viewer does not give the impression of denigration or disparagement but one where the Defendant's product is being self-promoted. Moreover, the intelligence of an ordinary viewer also ought not to be ignored while judging such commercials. The ld. Division Bench in Dabur India v. Colortek (supra) has pointed out that market forces, nature and quality of the products would ultimately be the deciding factors for a consumer to make a choice. It cannot be ignored that the consumers are cognizant of the fact that advertisements are one sided commentary put out by the manufacturers and sellers for the promotion of their own products and are inherently biased in nature. While deciding a disparagement suit, the overall impact of the commercial has to be considered and in the absence of any derogatory remarks, mere use of some expressions cannot lead to an injunction.

Photocopying Copyrighted Material 'in the course of instruction' is Fair Use

Justice R.S. Endlaw
Delhi High Court

In a landmark judgment rendered in The Chancellor, Masters & Scholars of The University of Oxford & Ors. v. Rameshwari Photocopying Services & Ors., the Delhi High Court has examined the scope of the 'fair use' doctrine and has held that photocopying copyrighted material during the course of educational instruction would not amount to copyright infringement.

Appearing for Rameshwari Photocopy Services ("Rameshwari"), Mr. Saurabh Seth denied that any act of infringement of copyright had been committed by his client. It was further argued that the activities carried on by his client amount to fair use of the works within the meaning of Sections 52(1)(a) & (h) of the Copyright Act, 1957. It was further argued that Rameshwari had been granted licence with respect to a small shop within the campus of Delhi School of Economics ("DSE") to provide photocopy services to students and faculty at nominal rate and as per the terms of licence and under the said license, Rameshwari was required to provide 3000 photocopies per month to DSE, an institute of the University of Delhi, free of cost and to charge only the prescribed rate for the photocopy service meted out to others

Mr. Saurabh Seth further pointed out that the University recommends the syllabi for each academic year along with suggested reading materials of a wide variety of authors and which material is contained in different books of different publishers sold at a high price, often beyond the reach of the students. It was also argued that the syllabi of the University does not recommend the entire publication but only certain extracts from the same and as such the students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein and cannot afford to buy 35 to 40 books, portions of which are prescribed in the syllabi and / or suggested for reading. It was pointed out that to ease the financial burden on students, majority of the titles prescribed in the syllabi are housed in the library of the University which provides such expensive books for reference of students; however owing to only limited copies of such books being available with the library, not enough to cater to the needs of all the students, the library allows the students to obtain copies of such books for their own reference and study. 

It was further pointed out that the services of Rameshwari are availed by the students and faculty to photocopy the relevant extracts from the books, articles and journals at the nominal / prescribed rate for use for educational purpose and reference only. Such course packs are used by teachers and students in the course of academic instructions and for research purposes. It was further argued that Rameshwari was xeroxing at the instructions of and on the terms imposed by the University and is not commercially exploiting the author's copyright but is giving copies to students at nominal rates of 40 paise per page to aid their education. It was further argued that even if the students were to bring the original work to get the same photocopied, Rameshwari would charge the same rate.

Mr. Gopal Subramanium (assisted by Mr. Saurabh Banerjee) and Mr. Neeraj Kishan Kaul (assisted by Swathi Sukumar) appeared for the University and intervenors respectively and supported the case of Rameshwari that there was no infringement of copyright and that the use of the material was protected by the fair use doctrine.

After examining the issue in details, Justice Rajiv Sahai Endlaw has dismissed the suit holding inter alia as under:

24. To be able to gauge the full import of Section 52 of the Copyright Act, I have examined the provisions of the said law from the beginning of the statute.

25. The Copyright Act was enacted ―to amend and consolidate‖ the law relating to copyright. Copyright forms part of the bouquet of intellectual property rights and I have wondered whether copyright is also a natural right or a common law right which vests in the author or composer or producer of the work and thus whether in the absence of anything to the contrary contained in the Copyright Act, the attributes of ownership, as with respect to other forms of property, would enure to copyright also. Mention may be made of K.T. Plantation Pvt. Ltd. Vs. State of Karnataka (2011) 9 SCC 1 where a Constitution Bench of the Supreme Court held that Article 300A of the Constitution proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without any support of law made by a competent legislature and that the expression 'property' in Article 300A is not confined to land alone but also includes intangibles like copyright and other intellectual property and embraces every possible interest recognised by law. 

26. Section 13 of the Act defines the works in which copyright subsists but makes the same subject to the provisions of that Section as well as other provisions of the Act. The same leads me to form an opinion that copyright, though may subsist under the natural law in any work, has been made subject to the statute and if the statute limits the works in which copyright subsists, there can be no natural copyright therein.

27. Section 14 of the Act gives the meaning of copyright as the exclusive right, again ―subject to the provisions‖ of the Act, to do or authorize the doing of the acts listed therein in respect of the work in which the copyright subsists. The same is again indicative of the author, composer or producer having only such rights which are prescribed thereunder and that too subject to the other provisions of the Act. In relation to literary works, with which we are concerned, one such right is the right to reproduce the work or any substantial part thereof. However if any other provision of the Act is to provide otherwise, the same will cease to be the copyright. Similarly,Section 2(m) defines ―infringing copy‖ as meaning in relation to literary works, a reproduction thereof, if made in contravention of the Act, meaning, if any provision of the Act permits any person to reproduce any work or substantial part thereof, such reproduction will not be infringing copy. 

28. The position becomes unequivocally clear from Section 16 which provides that no person shall be entitled to copyright or any similar right in any work otherwise than under and in accordance with the provisions of the Copyright Act. The same unequivocally prescribes that there is no copyright except as prescribed in the Act, converting copyright from a natural or common law right to a statutory right.

29. Section 51 prescribes that copyright is infringed inter alia when any person does anything exclusive right to do which has been conferred by the Act on the owner of copyright. It follows, if there is no exclusive right, there is no infringement. Section 52 lists the acts which do not constitute infringement. Thus, even if exclusive right to do something constitutes copyright, if it finds mention in Section 52, doing thereof will still not constitute infringement and the outcome thereof will not be infringing copy within the meaning of Section 2(m). Section 55 also, entitles the owner of copyright to remedies by way of injunction, damages, accounts or otherwise as are conferred by law for infringement of a right, only when copyright is infringed and except as otherwise provided by the Copyright Act. Thus unless there is infringement of copyright within the meaning of the Act, owner of copyright is not entitled to sue.

30. A Division Bench of this Court in Time Warner Entertainment Company, L.P. Vs. RPG Netcom (2007) 140 DLT 758 held that copyright cannot be claimed and suit for infringement of copyright cannot be maintained de-hors the Copyright Act and that the Common law rights to copyright were abrogated, earlier by Section 31 of the Copyright Act, 1911. It was held that a person is entitled to copyright only under the provisions of the Copyright Act and any other statutory enactment in force. Supreme Court also, in Entertainment Network (India) Ltd. supra held that copyright unlike trademark is a right created under the Act and that when a author claims a copyright, the right has to be determined with reference to the provisions of the Act. Recently, in Krishika Lulla Vs. Shyam Vithalrao Devkatta (2016) 2 SCC 521, copyright was held to be a statutory right requiring statutory conditions to be satisfied.

31. Copyright as a natural or common law right has thus been taken away by the Copyright Act.

32. I conclude, there can be no copyright in any author, composer or producer save as provided under the Copyright Act. Axiomatically if follows, unless the action of defendants No 1 and 2 amounts to infringement of copyright within the meaning of the Copyright Act, the plaintiffs or any other person in whom copyright vests cannot sue for infringement or damages or accounts, as have been claimed in the plaint.

33. I have next wondered, whether making of copies by the defendant no.2 University (for the time being I am not entering into the controversy whether making of copies by the defendant no.1 under the arrangement as pleaded with the defendant no.2 University makes any difference) of the books purchased by the defendant no.2 University and kept in its library and distributing the said copies to its students (I am again at this moment not entering into the controversy whether the charging by the defendant no.2 University makes any difference) amounts to defendant no.2 University doing any of the acts which vests exclusively in the owner of the copyright in the said books and to infringement of copyright.

34. It is not in dispute that the works in question fall in the category of original literary work.Section 14(a)(i) and (ii), in respect of such works, vests the exclusive right ―to reproduce the work in any material form including the storing of it in any medium by electronic means‖ and the right ―to issue copies of the work to the public not being copies already in circulation‖ in the owner of the copyright. I have wondered, whether ―to reproduce the work‖ would include making photocopies thereof as the defendant No.2 University is doing. The word ―reproduce‖ has not been defined in Section 2 of the Act though i) Section 2 (hh) defines ―duplicating equipment‖ as any mechanical contrivance or device used or intended to be used for making copies of any work; ii) Section 2(s) defines ―photograph‖ as including photo-lithograph and any work produced by any process analogous to photography; and, iii) Section 2(x) defines ―reprography‖ as making copies of a work by photo-copying or similar means. On the basis thereof, I conclude that the words in Section 14(a)(i) ―to reproduce the work‖ would include making photocopy of the work in contravention of the provisions of the Act. I have in Continental Telepower Industries Ltd. Vs. Union of India MANU/DE/1691/2009 held that a photocopy is certainly a copy. Long back, in British Oxygen Company Ltd. Vs. Liquid Air Ltd. 1925 Ch. 383 also it was held that making photographic copy of literary work is reproduction thereof. I thus conclude that the right to make photocopies is the exclusive right of the author or composer of the literary work and a copyright within the meaning of Section 14. Axiomatically, the making of photocopies by the defendant No.2 University will constitute infringement of copyright within the meaning of Section 51 and the photocopies so made constitute infringing copy within the meaning of Section 2(m) unless such act is listed under Section 52 as an act not constituting infringement.

35. It is noteworthy that Section 14(a)(i) constitutes right to reproduce literary work per se as copyright and Section 51(a)(i) constitutes such reproduction per se as infringement of copyright and Section 2(m) constitutes the copy so reproduced as infringing copy. Infringement is complete on reproduction of the work. To constitute infringement, it is not necessary that the person who has so reproduced the work, should put it to any use or should distribute or sell the same to others. However Section 14(a)(ii) also vests the exclusive right to issue copies of the work to thepublic not being copies already in circulation, in the owner of the copyright and constitutes the same as copy right. Thus the action of issuing copies of the work to public would also constitute infringement of copyright under Section 51. Neither Section 14(a)(ii) nor Section 51(a)(i) require such issuance of copies to be for consideration or to make profit. Issuance of copies even if without any charge thus constitutes infringement of copyright. The Explanation to Section 14however provides that for the purpose of that Section, ―a copy which has been sold once shall be deemed to be a copy already in circulation‖. Thus, the books in which the plaintiffs claim copyright, purchased by the defendant no.2 University, as per the said Explanation, are deemed to be a copy already in circulation within the meaning of Section 14(a)(ii) and the exclusive right to issue the same to the public does not vest in the owner of the copyright and does not constitute copyright and the defendant no.2 University would be entitled to issue the said books to the public. This is the principle of ‗exhaustion' that perhaps is the genesis of libraries, not only of Universities and other educational institutions but run and operated otherwise and commercially also, and of the business of resale of books.

36. I must record that the thought has indeed crossed my mind, whether the words ―to issue copies of the work to the public not being copies already in circulation‖ used in Section 14(a)(ii)entitles the purchaser of a copy of copyrighted work and which copy as per Explanation to Section 14 is a copy already in circulation, to make more copies of the said work for issuance thereof to the public as the defendant No.2 University is doing but have concluded that the words ―to issue copies of the work‖ cannot be read/interpreted as ―to make copies of the work‖ and which underSection 14(a)(i) is the exclusive right of the author and composer and that the purport of Section 14(a)(ii) is only to not vest in the owner of copyright any right to further issue to public a copy which he has already once issued. If the words ―to issue copies of the work‖ were to be read also as ―making copies of the work‖, the same would tantamount to the owner of copyright after having once sold a copy thereof, being left with no right to restrain the person who has purchased the copy from making further copies thereof and selling the same.

37. The defendant No.2 University thus, though entitled to issue the books, published by the plaintiffs and purchased by it and kept by the defendant No.2 University in its library, to whosoever is entitled to issuance of the said books from the library, per Section 14(a)(i) andSection 51(a)(i) would not be entitled to make photocopies of substantial part of the said book for distribution to the students and if does the same, would be committing infringement of the copyright therein.

38. Section 51 however besides vide clause (a)(i) thereof constituting the doing of acts exclusive right to do which under Section 14 vests with the owner of the copyright, an infringement, vide clause(a)(ii) and (b) thereof also constitutes, permitting any place to be used for communication of the work to the public where such communication constitutes infringement of copyright and sale/hire or otherwise dealing in infringing copies of the work, as infringement of copyright; however for the said actions to constitute infringement, the same have to be shown to be for profit or by way of trade. What emerges therefore is that while doing of something exclusive right to do which vests in the owner of the copyright constitutes infringement of copyright irrespective of whether there is any commercial element therein or not, facilitating infringement and dealing in infringing copies constitutes infringement only if done with commercial element.

39. That takes me to Section 52 which forms the pivot of the rival contentions. Section 52 lists acts, which even if infringement per Section 51 read with Section 14, have been statutorily declared to be not constituting infringement of copyright. But for Section 52 the acts listed thereunder would have constituted infringement of copyright.

40. Before proceeding to deal with the acts listed under Section 52 and on which arguments were addressed, I will take up first the question whether interpretation of Section 52 is to be by applying the rules of interpretation as applicable to a proviso or an exception, to Section 51.

41. Having considered the provisions of (i) Section 2(m) constituting reproduction of literary work as an infringing copy only if such reproduction or copy is made in contravention of provisions of the Act; (ii) Section 14 making the exclusive rights which flow from ownership of copyright subject to the provisions of the Act; (iii) Section 16 making ownership of copyright statutory; and, (iv) Section 51(a)(i) which by reference to Section 14, incorporates therein the condition of ―subject to provisions of this Act‖, I am of the view that a) the legislature having abrogated the natural or common law rights of authors and composers; and b) and having statutorily enacted what is copyright; and c) having made what is copyright also subject to other provisions of the Act; and d) having in successive provisions of the Statute prescribed ―when copyright infringed‖ and ―certain acts not to be infringement of copyright‖; and e) having vested the right to civil remedies only to situations when copyright is infringed, the rules of interpretation of Statutes as applicable to Proviso and Exception cannot be applied to Section 52of the Copyright Act. Once the acts listed in Section 52 are declared as not constituting infringement of copyright and the reproduction of work resulting from such acts as not constituting infringing copy, it follows that the exclusive right to do the acts mentioned in Section 52 has not been included by the legislature in the definition in Section 14; of copyright, once that is so, the doing of such act cannot be infringement under Section 51 and the question of taking the same out by way of proviso or exception does not arise. Supreme Court, in Nand Kishore Mehra Vs. Sushil Mehra (1995) 4 SCC 572, dealing with Sections 3(1) and 3(3) of the Benami Transactions (Prohibition) Act, 1988 which prohibits a person from entering into any benami transaction, Section 3(2) which permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter and Section 4 of the said Act which prohibits a person from enforcing rights in a property held benami, held that to hold that a person who is permitted to purchase a property benami in the name of his wife or unmarried daughter cannot enforce his rights in the property would amount to holding that the Statute which allows creation of rights by a benami transaction also prohibits enforcement of such rights, a contradiction which can never be attributed to a Statute. Similarly here, to hold that inspite of the legislature having declared the actions listed in Section 52 to be not amounting to infringement, the same have to be viewed putting on the blinkers of being infringement would amount to holding that the Copyright Act which allows actions listed in Section 52 to be done without the same constituting infringement and consequences thereof not constituting infrining copy, cannot be done to the extent permitted by the language of Section 52. I thus agree with the contention of the senior counsel for the defendant no.2 University that the rights of persons mentioned in Section 52 are to be interpreted following the same rules as the rights of a copyright owner and are not to be read narrowly or strictly or so as not to reduce the ambit of Section 51, as is the rule of interpretation of statutes in relation to provisos or exceptions. Thus, Sections 14 and51 on the one hand and Section 52 on the other hand are to be read as any two provisions of astatute. Reliance by defendants on Entertainment Network (India) Ltd. supra in this respect is apposite. It was held that the Copyright Act seeks to maintain a balance between the interest of the owner of copyright in protecting his works on the one hand and interest of the public to have access to the works, on the other.

42. The next question to be considered is whether the actions of the defendant no.2 University are to be tested on the anvil of Clauses (h),(i),(j) of Section 52(1) which deal with acts in relation to education or also on the anvil of Clause (a) of Section 52(1) which deals with an acts for purposes of private or personal use, criticism or review or reporting of current events, if in fair dealing with the work.

43. The various clauses under Section 52(1) deal with different factual situations. I am of the view that once the legislature has in Clauses (h), (i), (j) under Section 52(1) provided specifically for the field of education/instruction, the scope thereof cannot be expanded or restricted by applying the parameters of the omnibus or general Clause (a). It is a well known rule of construction that general provisions yield to special provisions. Supreme Court in J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. State of Uttar Pradesh AIR 1961 SC 1170 held that this rule has not been arbitrarily made by lawyers and judges but springs from common understanding of men and women that when the same person gives two directions, one covering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. This rule was recently reiterated in Commercial Tax Officer Vs. Binani Cements Ltd. (2014) 8 SCC 319. I thus hold Section 52(1)(a) to be having no applicability to the impugned action. Thus the extent of Section 52(1)(h), (i), (j) or whichever one is found applicable to specific situation with which we are concerned, cannot be widened or restricted by applying the parameters of Section 52(1)(a).

44. Section 52(1)(h) does not constitute as infringement the publication in a collection, mainly composed of non-copyrighted matter, bona fide intended for instructional use, of short passages from copyrighted work provided that not more than two such passages from the copyrighted work are so included.

45. However for Section 52(1)(h) to apply, there has to be firstly a ―publication‖ and secondly ―mainly composed of non-copyrighted matter‖. Though the course packs with which we are concerned in this suit may qualify as a collection within the meaning of Section 52(1)(h) but the said collection according to the plaintiffs also is entirely of copyrighted matter. For Section 52(1)(h) to apply the said collection has to be mainly of non- copyrighted matter. For this reason alone, in my opinion, the question of applicability of Section 52(1)(h) to the subject factual situation does not arise.

46. I have also wondered, whether the action of the defendant no.2 University impugned in the present suit i.e. of making photocopies of different copyrighted works and supplying the said photocopies to the students amounts to ―publication‖ within the meaning of Section 52(1)(h). 

47. The meaning of ―publication given in Section 3 of the Copyright Act for the purposes of the said Act is, making a work available to the public by issue of copies or by communicating the work to the public. Significantly Section 3 is not qualified with the words ―except where the context otherwise requires‖. On first impression, making of copies of copyrighted work and making the same available to the students would amount to publication within the meaning of Section 3 of the Act. Though the senior counsel for the defendant no.2 University has argued that the students cannot be construed as ―public‖ but neither has any reason therefor been cited nor am I able to find any. In my opinion students would not cease to be ―public‖. 

48. However strangely enough Section 14 of the Act while prescribing the meaning of copyright as the exclusive right to do the acts which are listed thereunder does not use the word ―publication‖, though in relation to literary works, Clause (a)(ii) thereunder vests in the owner of the copyright exclusive right to issue copies of the work to the public and which according to me would fall within ‗publication' within the meaning of Section 3 of the Act. The same leads me to infer that the word ―publication‖ in Section 3 refers to an act of preparation and issuing of a book, journal or piece of music for public sale as the plaintiffs are doing and does not refer to the act of making photocopies of a already published work and issuing the same. The meaning ascribed in Section 3 to ‗publication' becomes clear on reading thereof with Section 4 titled ―When work not deemed to be published or performed in public‖ and Section 5 titled ―When work deemed to be first published in India‖ and is found to be in the context of being made available to the public for the first time. When photocopies of an already published work are made, the same does not amount to making the work available to the public for the first time. Even otherwise it is a settled principle of interpretation that the definition even if given in a Statute to any word may not apply to the word used in another provision of the Statute if the context does not so permit. Supreme Court in Commissioner of Sales Tax Vs. Union Medical Agency (1981) 1 SCC 51 held that it is well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute; but where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are therefore normally enacted subject to the usual qualification -"unless there is anything repugnant in the subject matter or context", or "unless the context otherwise requires"; even in the absence of an express qualification to that effect, such a qualification is always implied.

49. Once Section 52(1)(h) is held to be not applicable, the contentions of the counsel for the plaintiffs, of the actions of the defendant no.2 University impugned in this suit constituting infringement owing to photocopying by the defendant no.2 University being of more than two short passages of each of the copyrighted work, also falls.

50. It is nobody's argument that Section 52(1)(j), though also pertaining to education and making performance, in the course of activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, if the audience is limited to such staff and students, the parents / guardians of students and persons connected with activities of institution as not constituting infringement of copyright applies to the factual situation subject matter of adjudication. 

51. The adjudication thus has to be only on the anvil of Section 52(1)(i) which constitutes, the reproduction of any work i) by a teacher or a pupil in the course of instruction; or ii) as part of the questions to be answered in an exam; or ii) in answers to such questions, not to be infringement of copyright .

52. The act of making of photocopies by the defendant no.2 University, as I have held hereinabove, is reproduction of copyrighted work by the defendant no.2 University.

53. However for the action of reproduction of such work by the defendant no.2 University to, under Section 52(1)(i), not constitute infringement of copyright in the said works, the same has to be ―by a teacher or a pupil in the course of instruction‖.

54. Though not addressed by either counsel but I have also considered whether the defendant no.2 University which is reproducing the work by making photocopies thereof would fall within the meaning of the word ―teacher‖ in Section 52(1)(i). Significantly Section 52(1)(j) which prescribes the action of performance of a literary, dramatic or musical work by the staff and students as not constituting infringement uses the words ‗educational institution' and which are conspicuously missing in Section 52(1)(i). The questions arise a) whether owing to the difference in language between Sections 52(1)(i) and 52(1)(j) with Section 52(1)(i) using the words ―teacher‖ and ―pupil‖ and Section 52(1)(j) using the words ―staff‖ and ―students‖ of ―educational institution‖ it has to be held that Section 52(1)(i) is not applicable to defendant no.2 University as an educational institution; or (b) whether the scope of Section 52(1)(i) is restricted to the actions of an individual teacher and an individual pupil or extends to action of the institution and its students.

55. On consideration, I am of the view that the scope and ambit of Section 52(1)(i) cannot be so restricted. The settled principle of interpretation of statutes is that the legislature is to be deemed to have used the language in the context of the prevailing laws and societal situations to which the legislation is intended. Education in the country though at one time pursued in Guru-Shishya parampara (Teacher - disciple tradition) has for long now been institutionalised, both at school and post - school level, with imparting of education by a teacher individually having no recognition. There is no reason to interpret Section 52(1)(i) as providing for an individual teacher and an individual pupil and which, neither at the time of inclusion thereof in the statute nor now exists in the society. Supreme Court, in S.P. Gupta Vs. President of India 1981 Supp (1) SCC 87 held that interpretation of every statutory provision must keep pace with the changing concepts and it must, to the extent to which its language permits, or rather does not prohibit, suffer adjustments so as to accord with the requirements of fast growing society. Similarly in The State of Maharashtra Vs. Dr. Praful B. Desai (2003) 4 SCC 601 it was held that in construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. The phrase ‗purposes of teaching, research or scholarship' vide Section 32(6) Explanation (d), though for the purpose of that Section only, has been defined as including ―purposes of instructional activity at all levels in educational institutions, including Schools, Colleges, Universities and tutorial institutions‖ and ―purposes of all other types of organized educational activity‖. I have no reason to hold that the legislature intended to exclude teacher and pupil in an educational institution as defendant no.2 University is, from ambit thereof. Thus, merely because imparting of education by teachers today is as part of an institution as the defendant no.2 University and it is the defendant no.2 University which on behalf of its teachers is reproducing any copyrighted work by making photocopies thereof, would not mean that Section 52(1)(i) would not be applicable. The counsel for the plaintiffs also, to be fair to him, has not contended so.

56. I may at this stage deal with another contention i.e. of substitution the words ―intended for the use of educational institutions‖ in Section 52(1)(g) as it stood prior to the, amendment of the year 2012 of the Copyright Act with the words ―intended for instructional use‖ in equivalentSection 52(1)(h) post amendment. The only effect of such substitution in my view is to expand/widen the scope thereof. ‗Instruction' is not confined to Educational Institutions or Establishments. The word ‗instruction' embraces any form of instruction wheresoever and not necessarily in educational institutions. It has been so authored in Para 21.84 of the Modern Law of Copyright & Designs Fourth Edition by Laddie, Prescott and Vitoria, also. However as distinct therefrom Section 52(1)(h) of pre 2012 amendment corresponding to Section 52(1)(i) of post amendment used the words ‗in the course of instruction' ‗by a teacher or a pupil' only. Thus while publication in a collection mainly composed of non-copyright work of two short passages of copyrighted work was earlier permitted only if intended for use of educational institutions, it is now permitted for any instructional use, not necessarily in educational institutions.

57. The use of the word ‗publication' in Section 52(1)(h) as distinct from the word ‗reproduction' in Section 52(1)(i) further brings out the difference between the two words. While the word ‗publication' used in Section 52(1)(h) connotes making available to the public ‗for the first time' or by way of ‗further editions' or ‗re-print' i.e. the activity in which plaintiffs are involved, the word ‗reproduction' used in Section 52(1)(i) entails ‗copying' for limited use i.e. for an individual or for a class of students being taught together by a teacher.

58. What is however contended is that the act of reproduction of copyrighted work permitted under Section 52(1)(i) has to be ―in the course of instruction‖ i.e. in the course of teachers of the defendant no.2 University lecturing the pupils and does not cover, the defendant no.2 University in the syllabus prescribed by it prescribing portions of the copyrighted work as suggested reading, making photocopies thereof and making the same available to the pupils i.e. the students. It is contended that the use of the word ―instruction‖ has to be limited to imparting of instructions in the classrooms or in the tutorials and during which the teachers can teach by doing in relation to copyrighted work actions which otherwise are the exclusive right of the owner of the copyright.

59. The word ―instruction‖ used in Section 52(1)(i) as also in Section 52(1)(h) (though not applicable) is not defined in the Act, though the word ―lecture‖ has been defined in Section 2(n)as including address, speech and sermon. The meaning assigned by the counsel for the plaintiffs to the word ―instruction‖ is the same as inclusive definition of lecture. Had the intention of the legislature while incorporating Section 52(1)(i) been to constitute reproduction of any work by a teacher or a pupil in the course of lecture, the legislature would have in Section 52(1)(i) used the word ―lecture‖ which has been defined in the Act. The word ―instruction‖ thus has to necessarily mean something other than lecture.

60. The word ‗instruction', as commonly understood and defined in dictionaries, means ‗something that someone tells you to do' or ‗a direction or order' or ‗detailed information about how something should be done or operated' or ‗the action or process of teaching'. Thus the word ‗instruction' in the context of a teacher would mean something which a teacher tells the student to do in the course of teaching or detailed information which a teacher gives to a student or pupil to acquire knowledge of what the student or pupil has approached the teacher to learn. A Division Bench of the High Court of Karnataka in B.K. Raghu Vs. The Karnataka Secondary Education Examination Board ILR 2009 Karnataka 206 also equated education to instruction or training by which people, (generally young), learn to develop and use their mental, moral and physical powers. It was held that 'formal education' is instruction given in schools and colleges--In this type of education, the people in charge of a school or college decide what to teach and learners then study those things under the direction of teachers. A Division Bench of the High Court of Bombay in Bombay Municipal Corporation Vs. Ramachandra Laxman Belosay AIR 1960 Bom 58 held that the words ―educational objects‖ in Section 63(b) of the Bombay Municipal Corporation Act, 1888 and the word ―instruction‖ used in clause (k) are words of very wide import. Education was held as meaning ―totality of information and qualities acquired through instruction and training which further the development of an individual physically, mentally and bodily‖. The word ―instruction‖ was held to mean, to furnish knowledge or information, to train in knowledge or learning, to teach, to educate.

61. Moreover, the use of the word ―instruction‖ preceded with the words ―in the course of‖ would mean in the course of instruction being imparted and received.

62. The crucial question for adjudication is, when does the imparting of instruction begin and when does it end. Whether in the classroom or tutorials only, as suggested by the counsel for the plaintiff or it begins prior to the classroom and ends much after the classroom interface between the teacher and pupil has ended, as contended by the counsels for the defendants. 

63. That takes me to the meaning of the phrase ―in the course of‖. Such words/phrase are found to have been often used in legislations (i) in relation to trade and commerce viz. ―in the course of trade and commerce‖ or ―in course of manufacture‖ or ―in the course of import or export‖, (ii) in legislations relating to employment viz. ― in the course of employment‖, and (iii) in legislations relating to taxation viz. ―in the course of the year‖, and my research shows, have been interpreted widely, as including within their ambit actions not just constituting ‗trade and commerce' or ‗employment' or ‗year' but also what are preceding and following the actual acts. 

64. Supreme court, in State of Travancore-Cochin Vs. Shanmugha Vilas Cashewnut Factory Quilon AIR 1953 SC 333, while construing the words ―in the course of the import of goods into, or export of the goods out of, the territory of India‖ used in Article 286(1)(b) of the Constitution of India held that though the words ―in the course of‖ are not to be read as synonymous with the words ―for the purpose of‖ but still the purchase made by the exporter to implement his agreement for sale with foreign buyer is to be regarded as having taken place in the course of export because the purchase by the exporter is an activity so closely integrated with the act of export as to constitute a part of the export process itself and as having taken place ―in the course of‖ the export. It was also held that the earlier sale or purchase were remote and not be regarded as integral part of the process of the export in the same sense as the last purchase by the exporter. It was held that the exports can be occasioned only if the exporters have the goods to export; the exporters are not necessarily the producers or manufacturers and in great many cases they have to procure the goods to implement the foreign orders; the overseas orders in such cases immediately necessitate the purchase of the goods and eventually occasion the export; the three activities were held to be so intimately and closely connected, like cause and effect, with the actual export that they may well be regarded as integral parts of the process of export itself. It was yet further held that one cannot overlook or ignore these well known preliminary but essential activities of the export merchants which necessarily precede and lead up to and indeed occasion or eventually make possible the ultimate physical movement of the goods and to hold that these purchases are independent local purchases totally distinct from the export trade will be to unduly narrow down the wide meaning of the flexible phrase ―in the course of‖.

65. It would thus be seen that for construing the phrase ―in the course of‖, the test of ―an integral part of continuous flow‖ and of ―commercial sense‖ was evolved. I must however mention that by the Constitution Sixth Amendment Act, 1956, Parliament was given power to formulate principles for determining when a sale or purchase of goods takes place. Pursuant thereto, a Constitution Bench of the Supreme Court in Md. Serajuddin Vs. The State of Orissa (1975) 2 SCC 47 though also held that the expression ―in the course of‖ implies ―not only a period of time during which the movement is in progress but postulates a connected relation‖, but on interpretation of Section 5 of the Central Sales Tax Act, 1956 held the sale to the exporter to be not exempt from sales tax under Section 5 of the Central Sales Tax Act, 1956. It would thus be seen that the ratio of Shanmugha Vilas Cashewnut Factory Quilon supra remains unaffected. 

66. In Mackinnon Machenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak (1969) 2 SCC 607, Supreme Court while construing the words ―in the course of the employment‖ in Section 3 of the Workmen's Compensation Act, 1923 held that the words ―in the course of employment‖ mean ―in the course of the work which the workman is employed to do and which is incidental to it‖. It was further held that the words ―arising out of employment‖ are understood to mean that ―during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered‖. It was yet further held that there must be a causal relationship between the accident and the employment.

67. It would thus be seen that the test of ―incidental‖, ―causal relationship‖ and ―otherwise would not have occasioned‖ was evolved to determine what is ―in the course of‖.

68. Again, in Regional Director, E.S.I. Corporation Vs. Francis De Costa (1996) 6 SCC 1, in the context of the words ―in the course of his employment‖ in Section 2(8) of the Employees' State Insurance Act, 1948, the dictionary meaning of ―in the course of‖ was explained as ―during (in the course of time, as time goes by), while doing‖.

69. In Commissioner of Income Tax, New Delhi Vs. M/s. East West Import and Export (P) Ltd. (1989) 1 SCC 760, in the context of the expression ―in the course of such previous year‖ in Explanation to Section 23A of the Income Tax Act, 1922 it was held that the word ―course‖ ordinarily conveys the meaning of a continuous progress from one point to the next in time and space and conveys the idea of a period of time, duration and not a fixed point of time. The words ―in the course of such previous year‖ were thus held to refer to the period commencing with the beginning of the previous year and terminating with the end of the previous year. 

70. A Five Judges Bench of the High Court of Orissa in Registrar of the Orissa High Court Vs. Baradakanta Misra AIR 1973 Ori 244 in the context of the words ―due course of justice‖ in Section 13 of the Contempt of Courts Act, 1971 held that one of the meanings of the word ―course‖ is ―the path in which anything moves‖. The words ―course of justice‖ were therefore held to mean the path in which justice moves. It would thus be seen that the test of ―the path in which anything moves‖ was applied to the interpretation of the words ―in the course of‖;

71. The phrase/words ―in the course of‖ are thus found to have a definite connotation and meaning and it has to follow that when the legislature used this phrase/words, it intended them to have the same meaning. The rule of construction approved by the Supreme Court in Banarsi Devi Vs. Income Tax Officer AIR 1964 SC 1742, is that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or a same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it. Similarly in F.S. Gandhi Vs. Commissioner of Wealth Tax (1990) 3 SCC 624 it was held that where the Parliament has repeated the same language it must be assumed that the Parliament was aware of construction placed by the courts on those words and in repeating those words Parliament must be taken to have used the words to bear the meaning which has been put upon them by the courts. 

72. Applying the tests as aforesaid laid down by the Courts of (i) integral part of continuous flow; (ii) connected relation; (iii) incidental; (iv) causal relationship; (v) during (in the course of time, as time goes by); (vi) while doing; (vii) continuous progress from one point to the next in time and space; and, (viii) in the path in which anything moves, it has to be held that the words ―in the course of instruction‖ within the meaning of Section 52(1)(i) supra would include reproduction of any work while the process of imparting instruction by the teacher and receiving instruction by the pupil continues i.e. during the entire academic session for which the pupil is under the tutelage of the teacher and that imparting and receiving of instruction is not limited to personal interface between teacher and pupil but is a process commencing from the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing text books, readings and ensuring, whether by interface in classroom/tutorials or otherwise by holding tests from time to time or clarifying doubts of students, that the pupil stands instructed in what he/she has approached the teacher to learn. Similarly the words ―in the course of instruction‖, even if the word ―instruction‖ have to be given the same meaning as ‗lecture', have to include within their ambit the prescription of syllabus the preparation of which both the teacher and the pupil are required to do before the lecture and the studies which the pupils are to do post lecture and so that the teachers can reproduce the work as part of the question and the pupils can answer the questions by reproducing the work, in an examination. Resultantly, reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil asprescribed in the syllabus during the academic year would be within the meaning of Section 52 (1)(i) of the Act.

73. The matter can be looked at from another angle as well. Though I have held Section 52(1)(a)to be not applicable to the action of the defendant no.2 University of making photocopies of copyrighted works but the issuance by the defendant no.2 University of the books purchased by it and kept in its library to the students and reproduction thereof by the students for the purposes of their private or personal use, whether by way of photocopying or by way of copying the same by way of hand would indeed make the action of the student a fair dealing therewith and not constitute infringement of copyright. The counsel for the plaintiffs also on enquiry did not argue so. I have wondered that if the action of each of the students of having the book issued from the library of defendant No.2 University and copying pages thereof, whether by hand or by photocopy, is not infringement, whether the action of the defendant no.2 University impugned in this suit, guided by the reason of limited number of each book available in its library, the limited number of days of the academic session, large number of students requiring the said book, the fear of the costly precious books being damaged on being subjected to repeated photocopying, can be said to be infringement; particularly when the result/effect of both actions is the same.

74. The answer, according to me, has to be in the negative. 

75. It cannot be lost sight of that Section 63 of the Copyright Act constitutes infringement of copyright an offence punishable with imprisonment for a term not less than six months and extendable to three years ―and‖ with fine. When an action, if onerously done is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified. That is what has happened in the present case. In the times when I was studying law, the facility available of photocopying was limited, time consuming and costly. The students then, used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently either make carbon copies thereof or having the same photocopied. The photocopying machines then in vogue did not permit photocopying of voluminous books without dismembering the same.

76. However with the advancement of technology the voluminous books also can be photocopied and at a very low cost. Thus the students are now not required to spend day after day sitting in the library and copying pages after pages of the relevant chapter of the syllabus books. When the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence. 

77. The Court of Claims of United States as far back as in The Williams & Wilkins Company Vs. The United States 487 F.2d 1345 (Ct.Cl. 1973) was concerned with an action for infringement of copyright by a medical publisher against the Department of Health, Education and Welfare through the National Institutes of Health and the National Library of Medicine. The National Library of Medicine was alleged to have infringed the copyright by making photocopies of the articles published in the medical journals and distributing the same amongst students, physicians and scientists engaged in medical research. It was held (i) that the photocopying process did not even amount to printing or reprinting in the dictionary sense; (ii) if the requester himself made a photocopy of the article for his own use on a machine made available by the library, he might conceivably be "copying" but he would not be "printing" or "reprinting" ; (iii) the library is in the same position when responding to the demands of individual researchers acting separately; (iv) there is no "publication" by the library, a concept which invokes general distribution, or at least a supplying of the material to a fairly large group; (v) it is common for courts to be given photocopies of recent decisions with the publishing company's headnotes and arrangement and sometimes its annotations; (vi) it cannot be believed that a Judge who makes and gives to a colleague a photocopy of a law review article, in one of the smaller or less available journals, which bears directly on a problem both Judges are then considering in a case before them, is infringing the copyright; (vii) library was not attempting to profit or gain financially by the photocopying; (viii) the medical researchers who had asked the library for the photocopies and the scientific researchers and practitioners who need the articles for personal use in their scientific work and have no purpose to re-duplicate them for sale or other general distribution; (ix) the copied articles were scientific studies useful to the requesters in their work; (x) on both sides - library and requester - scientific progress untainted by any commercial gain from the reproduction was the hallmark of the whole enterprise of duplication ; (xi) the act was to gain easier access to the material for study and research; (xii) care had been taken not to have excessive copying from one issue or one volume of the periodical; (xiii) the recipients were not using the library's photocopying process to sell the copies or distribute them broadly; (xiv) thelibrary was responding only to requests from its own personnel and the entire photo-duplication system is strictly "in-house" - in the same way that a court's library may supply a Judge of that court with a copy of a law journal article or a reported decision; (xv) medical science would be seriously hurt if such library photocopying were stopped; (xvi) without such photocopying constituting infringement, the libraries could not be compelled to take licence from the publisher; and, (xvii) photocopying falls within fair use. It was accordingly concluded that there was no infringement of copyright. It was further held that ―use is not the same as infringement and use short of infringement is to be encouraged‖. This decision of the Court of Claims was subsequently affirmed by the US Supreme Court in Williams & Wilkins Company Vs. US 420 U.S. 376. 

78. I may also mention another advancement. Today, nearly all students of the defendant no.2 University would be carrying cell phones and most of the cell phones have a camera inbuilt which enables a student to, instead of taking notes from the books in the library, click photographs of each page of the portions of the book required to be studied by him and to thereafter by connecting the phone to the printer take print of the said photographs or to read directly from the cell phone or by connecting the same to a larger screen. The same would again qualify as fair use and which cannot be stopped. 

79. The German Federal Supreme Court in Re. the Supply of Photocopies of Newspaper Articles by Public Library [2000] E.C.C. 237 held that in a modern technologically highly developed nation like Germany, an extensive fast functioning and economic information exchange was vital; that is why the libraries were given the freedom to operate and the reproduction rights of authors were restricted in favour of freedom of information; that it was sufficient to escape liability for copyright infringement if the customer of the library could claim the benefit of the exemption which allowed the copying for personal use, of articles published in a periodical; whether or not the library charges for its service is immaterial; there may be an act of ‗circulation' where copies are offered which had not yet been made at the time of the ‗circulation' but not when copies are made; the same does not constitute commercialisation of copies of protected works.
80. Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public. For this reason only,Section 14(a)(ii) as aforesaid, applies the principle of ‗exhaustion' to literary works and which, this court in Warner Bros. Entertainment Inc. Vs. Mr. Santosh V.G. MANU/DE/0406/2009 has held, to be not applicable to copyright in an artistic work or in a sound recording or in a cinematographic film. Once it is found that the doctrine of exhaustion applies to literary work as the works with which we are concerned are, it has but to be held that it is permissible for the defendant No.2 University to on purchasing book(s) and stocking the same in its library, issue the same to different students each day or even several times in a day. It is not the case of the plaintiffs that the said students once have so got the books issued would not be entitled to, instead of laboriously copying the contents of the book or taking notes therefrom, photocopy the relevant pages thereof, so that they do not need the book again. 

81. I thus conclude that the action of the defendant no.2 University of making a master photocopy of the relevant portions (prescribed in syllabus) of the books of the plaintiffs purchased by the defendant no.2 University and kept in its library and making further photocopies out of the said master copy and distributing the same to the students does not constitute infringement of copyright in the said books under the Copyright Act. 

82. The next question is, whether the action of the defendant no.2 University of supplying the master copy to the defendant no.1, granting licence to the defendant no.1 to install photocopiers in the premises of the defendant no.2 University, allowing the defendant no.1 to supply photocopies made of the said master copy to the students, permitting the defendant no.1 to charge therefor and also requiring the defendant no.1 to photocopy up to 3000 pages per month free of cost for the defendant no.2 University and whether the action of the defendant no.1 of preparation of such course packs and supplying the same to the students for charge, constitutes ‗publication' within the meaning of Section 52(1)(h) or would tantamount to infringement by the defendant no.1 or the defendant no.2 University of the copyright of in the said books.

83. In my opinion, it would not.

84. What the defendant no.2 University is doing is not different from what is being done in the Bar Association library in the premises of this Court. With the advent of photocopying, the advocates of this Court, instead of carrying books from their residences / offices to this Court for citing judgments therefrom during the course of arguments and instead of giving in advance the list of such books to the Restorer of this Court and the Restorer of this Court also taking out the court's copies of the same books for the Judges to read, and all of which was cumbersome and time consuming, started having the photocopies of the relevant judgments made from the books in the Bar Association Library of this Court. Initially the said photocopying was got done by having the book issued from the library and carrying the same to the photocopier who had, for the convenience of the advocates, been granted a licence to operate from the premises of this Court. Subsequently, for expediency and to avoid the books being taken out of the library, the Bar Association library itself allowed the photocopier to install his machine within the library premises and any advocate could get the photocopy done by having the relevant judgment photocopied within the Bar Association library by paying the cost of photocopy as is fixed by the Bar Association.

85. The defendant no.2 University also could have possibly devised the same arrangement as has been followed in the Bar Association library of this Court and allowed the defendant no.1 to install its photocopying machine within the defendant no.2 University's library for the facility of the students. However for whatsoever reason the respondent no.2 University has deemed fit, it is continuing with the practice as was earlier prevalent in this Court.

86. In my view, there is no difference in the two situations i.e. whether the photocopying machine is installed within the library or is installed outside the library. In my view it also does not make any difference whether the respondent no.2 University itself purchases the photocopy machine and / or allows the students to photocopy themselves or employs a person for doing photocopy. In this respect, I may again note that in our country, with abundance of labour force, the acts such as of photocopying which are done by those desirous thereof themselves in other countries are done by a person employed therefor. In countries with not so much labour force, photocopiers are found to have been installed in libraries for the benefit of the patrons of the library to themselves photocopy whatsoever passages of the publications in the library they are desirous of photocopying for their personal use. Once such a action is held to be not offending any provisions of the Copyright Act, merely because the photocopying is done not by the person desirous thereof himself but with the assistance of another human being, would not make the act offending. It matters not whether such person is an employee of the defendant no.2 University or the defendant no.2 University avails the services of a contractor. The position of the defendant no.1 in the present case is found to be that of a contractor to whom the defendant no.2 University has outsourced its work of providing photocopying service for its students. For this reason, it matters not whether the photocopying machine is allowed by the defendant no.2 University to be kept within the library or at some other place outside the library.

87. It is not the case of the plaintiffs that the defendant no.2 University has permitted the defendant no.1 to or that the defendant no.1 is photocopying the entire books, binding the same, offering or displaying the same for sale to whosoever may be desirous of purchasing the same. The case of the plaintiffs before us is only of preparation of course packs i.e. compilations of photocopied portions of different books prescribed by the defendant no.2 University as suggested reading in its syllabus. That, in my view, by no stretch of imagination, can make the defendant no.1 as competitor of the plaintiffs. Imparting of education by the defendant no.2 University is heavily subsidized with the students still being charged tuition fee only of Rs.400 to 1,200/- per month. The students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiffs. If the facility of photocopying were to be not available, they would instead of sitting in the comforts of their respective homes and reading from the photocopies would be spending long hours in the library and making notes thereof. When modern technology is available for comfort, it would be unfair to say that the students should not avail thereof and continue to study as in ancient era. No law can be interpreted so as to result in any regression of the evolvement of the human being for the better. 

88. Just like the cost to the respondent no.2 University of employing a photocopier or a contractor for photocopying would have to be necessarily built in the cost of photocopy, so also the cost incurred by the defendant no.1 in employing manpower and towards electricity would be built in cost of photocopying. My enquiries reveal that the photocopier granted licence in this Court premises is also presently charging 75 paise per page. Comparing the same with the rate which the respondent no.2 University has permitted the defendant no.1 to charge, does not show that the defendant no.2 University has permitted the defendant no.1 to function or that the defendant no.1 is functioning as a competitor to the plaintiffs. It was only if the defendants no.1&2 were said to be charging for a reproduction of the book of the plaintiffs at a price competing with the price fixed by the plaintiffs for the books, could it have been said that the defendant no.1 is functioning commercially.

89. All that is happening in the present case is that instead of the defendant No.2 University issuing the book which may be sought after by a large number of students, to each one of them individually for limited period or limited hours and enabling each student to photocopy the passages or the contents thereof required by him ―in the course of instruction‖ and thereby exposing the book to damage, the defendant No.2 University itself is supplying the said photocopies. It cannot be lost sight of that we are a country with a bulging population and where the pressure on all public resources and facilities is far beyond that in any other country or jurisdiction. While it may be possible for a student in a class of say 10 or 20 students to have the book issued from the library for a month and to laboriously take notes therefrom, the same is unworkable where the number of students run into hundreds if not thousands. According to me, what is permissible for a small number of students cannot be viewed differently, merely because the number of students is larger. Merely because instead of say 10 or 20 copies being made by students individually or by the librarian employed by the University, 100 or 1000 copies are being made, the same would not convert, what was not an infringement into an infringement. 

90. I thus conclude that the engagement as aforesaid by the defendant No.2 University of defendant No.1 does not convert the action of defendant No.2 University as held hereinabove to be not amounting to infringement of copyright in books, to infringement.

91. I next take up the aspect of the international covenants. 

92. Articles 9 and 10 of the Berne Convention supra to which reference was made are as under:
"Article 9 Right of Reproduction:
1. Generally; 2. Possible exceptions; 3. Sound and visual recordings (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention. 

Article 10 Certain Free Uses of Works:
1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. (2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice. (3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.‖ 

93. Clauses 9.6 to 9.13 of the Code to the Berne Convention published by the World Intellectual Property Organization in relation to Article 9(2) of the Berne Convention are as under:
"Article 9, paragraph (2) Exceptions (2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
9.6. This provision gives to member countries the power to cut down this exclusive right of reproduction and permit works to be reproduced "in certain special cases". But the freedom allowed them is not total. The Convention adds two conditions in a formula, the drafting of which, in Stockholm (1967), led to prolonged debate, and the interpretation of which produces much difference of opinion. It consists of two phrases which apply cumulatively: the reproduction must not conflict with a normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the author.
9.7. If the contemplated reproduction would be such as to conflict with a normal exploitation of the work it is not permitted at all. Novels, schoolbooks, etc., are normally exploited by being printed and sold to the public. This Article does not permit member countries to allow this e.g., under compulsory licences, even if payment is made to the copyright owner.
9.8. If the first condition is met (the reproduction does not conflict with the normal exploitation of the work) one must look and see whether the second is satisfied. Note that it is not a question of prejudice or no: all copying is damaging in some degree; a single photocopy may mean one copy of the journal remaining unsold and, if the author had a share in the proceeds of publication he lost it. But was this prejudice unreasonable? Here, scarcely. It might be otherwise if a monograph, printed in limited numbers, were copied by a large firm and the copies distributed in their thousands to its correspondents throughout the world. Another example is that of a lecturer who, to support his theme, photocopies a short article from a specialist journal and reads it to his audience; clearly this scarcely prejudices the circulation of the review. It would be different if he had run off a large number of copies and handed them out, for this might seriously cut in on its sales. In cases where there would be serious loss of profit for the copyright owner, the law should provide him with some compensation (a system of compulsory licensing with equitable remuneration).
9.9. Most countries allow a few photocopies to be made without payment especially for personal or scientific use, but expressions of this sort leave a lot of latitude to legislators and the courts.
9.10. Laws, for example the Tunis Model Law, often allow the reproduction of a work for "the user's personal and private use". True, this expression is interpreted in different ways, but in principle it does not cover any collective use and it assumes that the reproduction is not done for profit. The usual example is that of the student who, for study or research purposes, copies a text. Manuscript copies have little impact;
but with the arrival of new copying techniques the situation changes. It is a matter not only of photocopiers but also of tape-recorders.
9.11. It is a little more than child's play to make high quality recordings of both sound and vision, either from discs or cassettes (re-recording) or off the air (television as well as radio). The idea of a limitation to private use becomes less effective when copies can be made privately in large numbers. If practical considerations do not offer copyright owners and their successors in title a chance to exercise their exclusive right of reproduction, it has been suggested that a global compensation might be provided for them, and that the money might be raised by imposing a levy on the material (tape, etc.) on which the sounds and images are fixed, as well as on the apparatus used for fixing. (A working group meeting in Geneva in February 1977 examined the legal problems arising from the use of videograms to make video-copies.) 9.12. Similar solutions (including the creation of collective mechanisms) are suggested in the field of reprography, where the problem is particularly acute because of the number of different users: libraries, archives, documentation centres, public research institutes whether established for profit or not, schools, government departments, etc. Reprography certainly makes a large contribution to the diffusion of knowledge; but it is no less certain that copying on a large scale seriously damages the interests of the copyright owners. These interests must therefore be reconciled with the needs of users. It rests with each country to make appropriate measures best adapted to its educational, cultural and social and economic development (see the conclusions of the sub-committee on reprographic reproduction which met in Washington in June 1975).
9.13. The legislator's task is not an easy one. This paragraph, with its two conditions, provides him with certain guidelines."
(emphasis added) 

94. Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights is as under:
"Article 13 Limitations and Exceptions Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the right holder.‖ 

95. It would thus be seen that under the Berne Convention also, the only binding obligation on the privy countries is to in their respective legislations i) not permit reproduction of the work so as to conflict with a normal exploitation of the work and so as to unreasonably prejudice the legitimate interest of the author; and, ii) to while permitting utilization of the literary works including in publications for teaching ensure that such utilization is to the extent justified by the purpose and compatible with fair practice. Similarly, under the TRIPS Agreement also the member countries have agreed to confine the exceptions to the copyright to the extent they do not unreasonably prejudice the legitimate interest of the right holder. 

96. India, under the international covenants aforesaid, though has the freedom to legislate as to what extent utilization of copyrighted works for teaching purpose is permitted but agreed to ensure that the same is to the extent ―justified by the purpose‖ and does not ―unreasonably prejudice the legitimate rights of the author‖.

97. The international covenants aforesaid thus left it to the wisdom of the legislators of the member / privy countries to decide what is ―justified for the purpose‖ and what would ―unreasonably prejudice the legitimate interest of the author‖. Our legislators, while carrying out the amendments to the Copyright Act are deemed to have kept the said international covenants in mind. Parliament / legislators have permitted reproduction of any work by a teacher or a pupil in the course of instructions. I have already hereinabove, in accordance with the meaning which has been assigned by the Courts to the words / phrase ―in the course of‖ since prior to the use thereof in Section 52(1)(i) and in accordance with the meaning of the word ―instruction‖, interpreted Section 52(1)(i). The legislators have found reproduction of the copyrighted work in the course of instruction to be justified for the purpose of teaching and to be not unreasonably prejudicing the legitimate interest of the author. It is not for this Court to impose its own wisdom as to what is justified or what is unreasonable, to expand or restrict what the legislators have deemed fit. The legislature is not found to have imposed any limitation on the extent of reproduction. Once the legislature which under our Constitution and under the international covenants aforesaid was entrusted to while making law in relation to copyright take a call on what is justified for the purpose of teaching and what will unreasonably prejudice the legitimate interest of the author has not imposed any such limitation, this Court cannot impose the same.

98. In Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin (2015) 12 SCC 169 it was held that Courts cannot read any words which are not mentioned in the section. Recently also in Narayan Vs. Babasaheb (2016) 6 SCC 725 it was held that inconvenience and hardship to a person will not be decisive factors while interpreting a provision and that when a bare reading of the provision makes it very clear and gives it a meaning, it has to be interpreted in the same sense as latin maxim dulo lex sed lex which means law is hard but it is law and there cannot be any departure from words of law.

99. In accordance with the aforesaid international covenants, the legislators of some other member / privy countries in the context of their respective countries have worded the exceptions differently and on an interpretation of which legislation, the Courts of those countries have adjudicated and which judgments have been cited by the counsels. I am however of the opinion that the said judgments in the context of different legislations on the basis of perception by the legislators thereof of the purpose of teaching and unreasonable prejudice to the legitimate interest of the author cannot form the bedrock for this Court to interpret the Copyright Act of this country.

100. I am therefore not proceeding to discuss the said judgments. The reference hereinabove by me to some foreign judgments is only to demonstrate the diversity.

101. I therefore conclude the actions of the defendants to be not amounting to infringement of copyright of the plaintiffs. 

102. Once that is so, no trial is required in the suit.

103. The suit is accordingly dismissed. However no costs. 

Decree sheet be prepared.