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the Copyright Act, 1957

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Delhi High Court
Krishna Sobti vs Amrita Pritam on 13 November, 1984
Equivalent citations: 27 (1985) DLT 279
Author: H Goel
Bench: H Goel


(1) By this order I shall dispose of application of Mrs. Krishna Sobti plaintiff/applicant under Order 39 Rules I and 2 of the Code of Civil Procedure for the grant of ad interim injunction against the defendants directing them to delete the word 'Zindginama' from the title of the book 'Hardutt Ka Zindginama' written by defendant No. I and published by defendants No. 2 to 4 in different languages and restraining the defendants from publishing, advertising, marketing or selling the book 'Hardutt Ka Zindginama' or from passing off that book as the book 'Zindginama' written by the plaintiff. The plaintiff Mrs. Krishna Sobti is a well-known Hindi writer and has published a number of literary works to her credit. Her novel 'Zindginama' was published in the year 1979 whereof the plaintiff has the copyright. This work of the plaintiff received acclamation in the literary circles and the reading public. The book 'Zindginama' got the Sahitya Academy Award for Hindi literary work in the year 1980. The book also got Sahitya Shiromani Award given by the Language Department of the State of Punjab. The book is a narration in novel form about the saga of Punjab and deals with the dominant elements of life in the agrarian repartition Punjab during 1900-1918, of its life (Zindgi) and time (Nama) and not about any particular individual. The case of the plaintiff is that upon receiving these awards the book acquired a secondary meaning and came to be associated with the plaintiff's name alone and the plaintiff has got copyright in the same. It is alleged that the plaintiff invented the title 'Zindginama' for her novel. The two parts of the title 'Zindginama' i.e. 'Zindgi' and 'Nama' are both independent Urdu/Persian words and have not been used in writings, nor are they to be found as composite one word in Persian, Urdu or Hindi dictionary. The word 'Zindgi' is of feminine and the word 'Nama' is of masculine gender and that the bringing together of these two words in the title 'Zindginama' is an odd construction and is in violation of linguistic convention. It was thus a unique and original title coined by the plaintiff.

(2) Ms. Amrit Pritam, defendant No. I, is admittedly a great poetess of repute. She has won the Sahitya Academy Award for poetry in the year 1956 and Gyanpeeth for poetry in the year 1980 (vide para 17 of the paint). She, amongst others, has also stated in her written statement that she has got acclaim and recognition for her prose writings, as well as for her other literary work and has detailed a number of her prose works including novel and about the acclaim and recognition she has got for her literary works, both poetry and prose. Defendant No. I authored her book 'Hardutta Ka Zindginama' in Punjabi which was published in the year 1983 by Lau Prakashan, Amrnritsar, Defendant No. 4. It was later translated in other languages and was later published in Urdu and Hindi by defendants No. 2 and 3 respectively. Shri Hardutt is a living person hailing from Punjab. He is the only Indian revolutionary who served a sentence of imprisonment in Siberia. The book 'Hardutta Ka Zindginama' of defendant No. I gives a life account of Shri Hardutt. In the written statements and the replies to the application as filed by the defendants they controverter the material allegations of the plaintiff.

(3) I proposed to pass a short order on the application. However, as lengthy arguments have been advanced in the case spread over a number of days and lot case law was cited on both the sides, I am passing this not too brief an order so as to briefly deal with the points raised in the arguments of the case. Mr. A K. Sen, learned Senior Advocate and later Mr. Mahinder Narain, learned counsel for the plaintiff, basing their case on the aforesaid allegations have contended that the title of the book 'Zindginama' was never used by any writer in India or elsewhere as the title of a book and. it was an original, novel and unique title as coined by the plaintiff and this title has become associated with the book of the plaint iff in question and the plaintiff has thus got a copyright in the title 'Zindginama' as the title of his or her book either singly as such or in combination with some other words for a book falling in the category of 'novels' which has some clement of friction therein. The other contention of the plaintiff is that the impugned book of the defendants 'Hardutt Ka Zindginama' in Punjabi and its translation in Urdu and Hindi are likely to be confused as the book 'Zindginama' written by the plaintiff in Hindi or its translation in Punjabi or in Urdu, as the case may be, and some readers who want to read the book 'Zindginama' of the plaintiff are likely to be deceived and may take the book 'Hardutt Ka Zindginama' of defendant No. 1 as the book 'Zindginama' of the plaintiff i.e. that the book of defendant No. 1 is likely to be passed off as the book of the plaintiff.

(4) The first question that arises for consideration is whether there can be a copyright in the title of a book as indicative of the particular work. In the case Francis Day and Hunter Ltd. v. Twentieth Century Fox Corporation Ltd. and others, Air 1940 P.C. 55, it was held that as a rule a title does not involve literary composition and is not sufficiently substantial to justify a claim to protection. But that statement does not mean that in particular cases a title may not be on so extensive a scale and of so important a character as to be a proper subject of protection against being copied. Reference was made to an observation by Jessel M.R. in Dicks v. Votes, (1881)18 Ch. D. 76, that there might be copyright in a title "as for instance a whole page of title, or something of that kind requiring invention." Reference was also made to the observation of Lindley L.J. in Licensed Victuallers Newspapers Co. v. Bingham, (1889)38 Ch. D. 139, that Dicks v. Yates (supra) had virtually overruled Weldon v. Dicks, (1879)10 Ch. D. 247 on the said point. As against this judgment reliance was mainly placed on behalf of the plaintiff on the judgment in Weldon v. Dicks (supra). At page 260, it was observed in that case that the title of a book is a valuable property. It is a part of the book. One cannot read any book or turnover the title page without finding that the title is at the commencement of the book. Further that it is part of the book, and is as much the subject of copyright as the book itself. In that case it was held that Weldon plaintiff in that case had copyright in the title of the book "Trial and Triumph" as the assignee of its publisher and the title of the book as being a material portion of the work was held to be entitled to protection even though the impugned book published under the similar title was different in form and contents. There appears to be quite some controversy as regards the question as to the kind of title of a book in which its author can have copyright. Weldon v. Dicks (supra) has been somewhat differently interpreted in some later case law. It is also observed to have been virtually over-ruled in some cases, as. already pointed out by me above. In Licensed Victuallers Newspapers Co. Bingham (supra), on the facts of the case it was held that a title to a weekly newspaper (as the case was) by user and reputation could not be acquired by its publication just for three days and with a very small sale. It was further held that the registration of such a publication under the copyright Act gave no exclusive right to such name of the weekly. Lindley L.J. in his short judgment in that case observed as below: "THE Copyright Acts do not help them (plaintiff) for Weldon v. Dicks, 10 Ch. D. 247, on which they might have relied, is on this point over-ruled by Dicks v. Yates, 18 Ch. D. 76."

This observation, with respect, does not appear to be correct. I may, however, say that it cannot be said that Weldon v. Dicks (supra) was over-ruled or dissented with after discussion in Dicks v. Yates (supra). It is, however, not necessary to record any finding on the question as to whether there can be a copyright in the title of the book alone as in the present case the real question for consideration is as to whether by adopting the title 'Hardutt Ka Zindginama' which includes the word 'Zindginama' defendant No. I has infringed the copyright of the plaintiff in the title 'Zindginama' assuming her to be so having copyright in that title as part of her work. Before I deal with that it may be stated here that some material has been placed by the defendants on the record to show that the word 'Zindginama' was not invented by the plaintiff and was the title of some books in Punjabi and Persian in India and Iran prior to the publication of the plaintiff's book. There is a lot of controversy about this claim of the defendants as well. In that regard I may say that whereas the words Zindgi' and 'nama' are common words, the word 'Zindginama' no doubt does not appear to be a hackneyed or common word. However, the question as to whether the plaintiff has invented this word or there is any great originality involved in the coining of this word is certainly a contentious matter having regard to the material as placed by the defendants on the record in that regard.

(5) Now reverting to the second question as stated above I am of the prima facie view that the adoption of the title 'Hardutt Ka Zindginama' by defendant No. 1 for her book does not amount to infringement of the copyright (as assumed) of the plaintiff in the title 'Zindginama.' The titles of the two books are obviously different titles. The title of the book of defendant No. 1 clearly states that that book is the Zindginama i.e. life story of an individual namely, Hardutt, whereas the title 'Zindginama' by itself does not suggest if it is a life story of any particular person. The word 'Zindginama' although means the life story, yet, admittedly, the plaintiff's book does not narrate life story of any individual. The subject-matter of the two books are also admittedly entirely different. The name of Ms. Amrita Pritam defendant No. 1 as the author of her book is quite prominently given on the title cover, as also on the first two or three covering pages of her all publications in the three languages. As stated by me above, defendant No. I is also admittedly a renowned writer of Punjabi poetry and prose in her own right. The title of her book is true as to its contents. The book of the plaintiff comprises of 424 pages whereas the book of defendant No. I is much smaller in size and volume, having 143 pages in Hindi edition, 199 in Punjabi edition and 205 in Urdu edition. The style of writing the title in the book of the plaintiff and the three books of defendant No. I as also the color-scheme of the title pages of the book of the plaintiff and those of defendant No. 1 are entirely different. The thrust of the argument of Mr. Sen has been that the book of defendant No. I belongs to the same category of books as that of the plaintiff, namely, a novel and therefore, the book of defendant No. 1 for which the title in question has been adopted by the defendant No. I which includes the word 'Zindginama' is deceptively similar to the title of the plaintiff's book 'Zindginama' and as such amounted to infringement of copyright of the plaintiff therein. It impliedly means that there may not have been any infringement on the part of defendant No. I by adopting the title 'Hardutt Ka Zindginama' if that were written not as a novel, but in some other form e.g. poetry or some form other than novel. Mr. Sen was, however, unable to cite any authority in which such a view may have been expressed. As against this the following observations in the case Weldon v. Dicks (supra) which is the mainstay of the plaintiff's case itself (at page 259) are quite instructive on the point: "THE matter came before me on the 19th of July upon a motion for an injunction, but I declined to interfere' and I felt then, as I do now, that the dispute might have been readily settled if the defendant would adopt a slight alteration in the cover of his book No such argument, however, was come to, and the plaintiff, thinking that the case might have been disposed of upon interlocutory application, appealed from my decision. That application was unsuccessful, and the case now comes before me upon the hearing."

(Emphasis provided) They are a pointer to the effect that in any case a slight difference in the title subsequently adopted by a writer from the title originally adopted by a writer in which the latter may have a copyright may not be open to attack of infringement of the latter's copyright in the title. In any case the question as to whether the title of the defendants' book amounts to infringement of the alleged copyright of the plaintiff in the title 'Zindginama' of her book is quite a contentions question which can properly be decided at the trial of the suit and it cannot be said that the plaintiff has got a good prima facie case in that record.

(6) The position regarding the case of the plaintiff for passing off action is rather worse than the infringement action as brought out by the plaintiff. The adoption of certain words as the title of a novel might make a trade mark, and entitle the owner of the novel to say anyone else "You cannot sell another novel under the same title so as to lead the public to believe that they are buying my novel when they are actually being yours." However, I have already stated above some of the points of similarity in the books of the two authors. The defendants' book is the life story of Shri Hardutt. Therefore, the adoption of its title as 'Hardutt Ka Zindginama' is true to the subject- matter of the book and no cogent material has been placed on the record to show that the title of the defendants' book is a colourable imitation of the plaintiff's book or that there is' any animus furan on the part of defendant No. -I in adopting the title of the plaintiff's book. Prima facie it does not appear that any reader of books would be misled so as to purchase the book of the defendants as the book of the plaintiff. It is also worth-nothing that that the plaintiff's only case is that the book of the defendants is likely to create confusion and deception on the part of readers who may be aware of the author of the book 'Zindginama' which has otherwise become well-known and renowned book so as to purchase the book of the defendants for the plaintiff's book. Further the plaintiff has not even alleged in the plaint if it has come to her knowledge from any source including her publishers if any customer has actually been so misled so far.

(7) In view of what has been said above, in my opinion, the plaintiff has not been able to make out any case for the grant of a temporary injunction as prayed for by her in her favor. It may be stated here that the balance of convenience also seems to lie in favor of the defendants, inasmuch as the plaintiff is not going to suffer any irreparable loss if the injunction is not granted in her favor, as in case of her success in the suit she can be adequately compensated for by the impugned act of the defendants during the pendency of the suit. On the other hand, the grant of the temporary injunction would amount to virtually decreeing the suit of the plaintiff. The grant of the main relief of permanent, injunction would also give an unfair advantage to the plaintiff over the defendants inasmuch as the reputation and goodwill of defendant No. 1 is likely to suffer by the grant of the temporary injunction when it cannot be said at this stage if the plaintiff is going to succeed in the suit. The application is accordingly dismissed. I need hardly say that the observations made in this order are purely for disposing of the plaintiff's application for the grant of temporary injunction and shall not prejudice the case of either side at the trial of the suit.