Copyright Act, 1957

Section 2(c)

Designs Act, 1911 — Section 2(1)(5)

Designs Act, 2000 — Section 2 (d)

Dismissing Appeal.
Held Imitation or substantial reproduction of the plaintiff's fabric prints including the underlying drawings/sketches . Artistic work as defined in Section 2(c) of the Copyright Act, 1957 is excluded . No denial by the defendant of alleged infringement of copyright . This a flagrant case of violation of copyrights.

Further Held Registration of the work is not compulsory and is not a condition precedent for maintaining a suit for damages for infringement of copyright

There is no specific denial by the defendant in the written statement filed by him except in Para 3 where it is urged that the work in question is not covered under Section 2(c)(iii) of the Copyright Act and the said fabric are designs which are registered under the Designs Act, 1911 or under the new Designs Act of 2000. [Para 19]

Here again, it is pertinent to mention that the defendant has not made any specific denial of the said averment made by the plaintiff pertaining to the allegation of infringement of copyright mentioned. He has only made the following statement to the said paras :
"13-15. That the contents of paras 13 to 15 of the plaint are wrong and hence denied. It is denied that the designs as referred as T-l to TSare the original designs of the Plaintiff or that the said designs are registered under the Designs Act, 2000.
Plaintiff has dwelled extensively into comparison of two samples without estab¬lishment of his rights and without showing as to which right has been infringed." [Para 21]

From the above said averments, it is clear that there is hardly any denial made by the defendant of alleged infringement of copyright by him and it appears that it is a flagrant case of piracy of copyrights. The concept of copyright has been dealt by the Bombay High Court in the case of Burroughs Wellcome (India) Ltd. v. Uni-sole Pvt. Ltd. and Another; 1999 PTC (19) 188(Bom) in the following words:

"8. Copyright it is a form of intellectual property. With advancement in technology it is very easy to copy. The basic test in actions based on the infringement of the copyright is that if a thing fetches a price, it can always be copied and therefore, it needs adequate protection. It is well settled that although under the Copyright Act 1957, there is a provision of registration, under Section 44 of the Act. It is not in doubt that the said procedure is an enabling provision and registration is not compulsory for the purpose of enforcing copyright. Section 44 of the Act provides for registration of work in which copyright exists but in order to claim copyright registration is not necessary. This is because registration is only to raise a presumption that the person shown in the certificate of registration is the author. This presumption is not conclusive, but no further proof is necessary unless there is a proof rebutting the contents of the said certificate. Under Section 48 of the Registration Act therefore, the act of registration is ex-facie prima facie evidence of the particulars incorporated in the certificate. There is no provision under the Act which deprives the author of his rights on account of non-registration of the copyright. There is nothing in the Act to suggest that the registration is condition precedent to the subsistent of the copyright or acquisition of copyrights or ownership thereof or for reliefs of infringement of copyrights. The sine-qua-non of existence of a copyright is expenditure of skill, labour and capital on any work expanded by a person I author and unless the original work is produced in Court to prima facie show that the work has originated from author, no relief can be granted. In other words, copyright exists even without it being registered for the purposes of its enforcement. The nature of copyright is also meant a to be borne in mind. It subsists in any material form in which ideas are translated. Copyright is a incorporeal right. It does not lie in any idea, but it lies in the expression in which the idea is expressed. The work of an author therefore becomes the subject matter of the copyright. In essence the copyright is a negative right of preventing copying of physical material in the field of art, literature etc. Once an idea is written . down, the writing becomes the subject matter of copy right. With globalisation and advancement of technology, even computer programmes come within the copyright. Any work conveying a particular information comes within the subject matter of a copyright and it needs protection. Even a catalogue of items manufactured by a manufacturer can come within the subject matter of copyright. Even a decoration or an artistic work on a carton or a contained of goods can become the subject matter of copyright......." [Para 22]

We are, therefore, of the opinion that the plaintiffs' work is entitled for protection under Section 2(c) of the copyright Act and is an original artistic work. Since the work is an 'artistic work' which is not covered under Section 2(d) of the Designs Act,2000, it is not capable of being registered under the Designs Act and the provisions of Section 15(2) is not applicable. [Para 26]