TMI Blog1957 (3) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... the original judgments. These it published separately in the monthly parts of its publication and called Notes of Unreported Cases or N.U.C. as they were repeatedly referred to at the Bar and as I shall hereafter refer to them. 3. According to the plaintiff, the preparations of the notes and head-notes involved the plaintiff in considerable expense in employing lawyer editors to prepare the notes, and when prepared, such notes constituted original literary work in which the plaintiff had a copyright. 4. The plaintiff also publishes Digest of 4 known as the Madras Law Journal Digest. 5. The defendant No. 1 who is the editor of the law journal called Madras Weekly Notes recently published an All India Digest. 1951-55, Civil. Criminal and Revenue. In this Digest he has pirated the notes and head notes published by the plaintiff in his NUC's. The notes published in the defendant's Digest are copied from the plaintiff's head-notes by making imitations or alterations and by paraphrasing, shortening or otherwise of the head-notes of the plaintiff. The plaintiff appended to the plaint a list of such imitations or copies which con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Now the principles upon which a Court grants temporary injunction are well settled, and they are that there must be a bona fide contention between the parties and that on the facts before the Court it must be satisfied that there is a probability that the plaintiff is entitled to the relief, or in other words, that he has a prima facie case. If there is a prima facie case then the Court has to see on which side in the event of success will lie the balance of inconvenience if the injunction does not issue. On each of these questions counsel have made lengthy submissions, extending over the best part of a day. 10. The first point argued on behalf of the appellant was that no copyright can be claimed in the matter of notes and head-notes of the plaintiff. According to counsel the notes and head-notes do not constitute any original work at all but are mere abridgments of the original judgments. The plaintiff has not filed any original judgment to prove that the notes prepared on the basis of that judgment constituted an original literary work. Now, upon the: defendant's own showing, the notes or head-notes of the plaintiff were abridgments of the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain. AIR 1924 All 922 at p. 926 and G. G. Harrap and Co. v. Harbans Lal, AIR 1935 Lah 282. 12. The defendant No. 1's case is not that he prepared the head-notes contained in his Digests from the original judgments. On his own admission his notes were prepared only from the matter contained in the NUC's. He had no other source from which he could get the points contained in the original judgments. This is clear from paragraphs 5, 6 and 8 of defendant No. 1's written statement and from paragraphs 7 and 8 of the affidavit of defendant No. 1 in reply to the application for temporary injunction. 13. Now, of the examples of alleged piracy quoted by the plaintiff. I have compared a number of instances and I quote only one such instance below. In column 1592 of the defendant's Digest. AIR 1955 NUC (Assam) 3635 is cited as case no. 8111 as follows: Appellate Court cannot make out a case not covered by pleadings. The corresponding head note in the plaintiffs Digest AIR 1955 NUC (Assam) 3635 is as follows:-- Appellate Court cannot make out case not covered by pleadings. This prima facie amounts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it all references to the NUC's from their Digest, and if so, there should be no objection to their publication and the injunction preventing its wholesale publication and sale can never be justified. 15. The argument in theory appears plausible, but I am unable to see how it can be given effect to in practice and if an injunction is limited as urged. In the first place, I am unable to see how the defendant can now remove the references to the NUC s altogether from the Digest unless he prints and publishes fresh copies. In the second place, it is admitted that volume I of the defendants' Digest has already been printed, published and sold. It was also admitted before me that some copies of the second volume have been sold. Should any copies containing the references to NUC's be now sold, it would be impossible to detect such sales because some copies have already been sold and are in circulation. It will be difficult, if not impossible, to ascertain whether a particular copy found to have been sold in the market was sold before or after the injunction. The injunction in the qualified form in which the defendants urge it should have been passed, cannot the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution which continues in force all existing laws and their adaptations. 18. It was, however, urged on the analogy of the decision of their Lordships of the Supreme Court of India in Menon's case 1955 SCR 280 = (AIR 1954 SC 517) that the Indian Copyright Act cannot be operative law after the coming into force of the Constitution because it was not law in force within the meaning of Article 372. In Menon's case, 1955 SCR 280 = (AIR 1954 SC 517) the Fugitive Offenders Act of 1881 was held not to be law in force in India because Section 12 of the Act only applied it to a group of British possessions mentioned in an Order in Council and their Lordships held that after Independence India was not one of a group of British possessions and that concept was repugnant in the context of a sovereign democratic republic. In the instant case, however, the applicability of the Copyright Act of 1911, depends upon the provisions of Section 3 thereof read with the First Schedule and Section 1 (2) applies it to the whole of India except the State of Jammu and Kashmir. In the English Act also the words used in defining the limits in which copyrights are to prevail are through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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