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2015 (12) TMI 710 - BOMBAY HIGH COURTCopyright infringement and breach of confidentiality - The Plaintiff claims to hold the copyright in a concept note for a proposed television serial called "Ye Tera Ghar Ye Mera Ghar" - Held that:- Nothing in either of the two documents supports the comparative chart that was shown to me on 11th September 2015. Here, the Plaintiff claims its story includes themes about the ghost family claiming ownership of the house, being murdered, hoping for revenge and justice and so on. There is a welter of additional material in this chart, all claiming similarity. But what is the source of this? It is not to be found in the 'literary work’ annexed to the Plaint and on which the suit is brought. It is not to be found in the slide presentation said to have been made to Star India. Is it a further iteration of the work as developed for Zee? If it is, then it has never been disclosed to Star India, and, in any case, it would be for Zee to file suit. This would be so even on an acceptance of the Plaintiff’s assertion that it retained the copyright in the initial work despite the Agreement with Zee. A more helpful comparison is the one that is provided by Star India in paragraph 20 of its Reply, and it shows the very marked difference between the two works As a matter of law, when copyright infringement is alleged in this form, and in relation to a concept, there must be an established comparable similarity between the work in which copyright is said to subsist and the work said to be infringing. A person cannot claim copyright in some work, and then contrast the defendant’s work with some entirely different work of unknown provenance and at a very great intellectual and literary remove from the work in which copyright is said to exist. This is where the Plaintiff’s case fails the Beyond Dreams test, and fails it utterly. Gupte J held that a first pre-requisite was to identify the confidential information itself. That is not done. Second, it must be material not in the public domain. The 'crux and essence’ claimed by the Plaintiff sits squarely in the public domain. Then, the material disclosed must be sufficiently developed to lend itself to realization; and this takes us to the springboard or kernel doctrine, which has it that breach of confidentiality liability will arise where it is shown, the other tests being satisfied, that the plaintiff’s work lies at the heart of the offending or infringing work; and that the rival work has only dressed up the kernel with additional material. I would add to this a further test, viz., a demonstration that the plaintiff’s work on which the suit is brought is indeed comparable to that of the defendant. All these tests, including the factual test of whether or not there was a handing over of proprietory material in circumstances of confidence, must be established. None are. The Motion fails. It is dismissed.
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