2007 Supreme(Bom) 705

2008(2) Bom.C.R. 400
(O.S.)
Khanwukar A.M., J.
Urmi Juvekar Chiang ... Plaintiff
Versus
Global Broadcast News Ltd.& anr. ... Defendants.
Notice of Motion No. --- of 2007 in Suit (Lodging) No. 1467 of 2007. Decided on 76-2007.

Headnote:Civil Procedure Code, 1908 - Order XLI, Rules 1 and 2-Defendants developed of concept of exposition of civil works in a telefilm conveyed in confidence for being developed with defendant’s help as per agreed terms-Defendants had acted in breach of confidence-Question arises as to whether relief of injunction can be granted against defendants-Held that relief of injunction will have to be ascertained if work of defendants is similar in material.-Question is whether the plaintiff has shown that the subject information was of such type which could be treated as confidential? Even on this issue, there should be no difficulty in accepting the claim of the plaintiff. Indeed, the defendants would contend that no confidentially can be claimed in relation to matters in public domain. For, the issue of civic woes in public domain and no confidentiality can be claimed in respect of the idea to solve the same. Moreover, the breach of confidentiality can be invoked only if it is a case of use of a script, characterisation, sequences, dialogues.

       Thus understood, to answer the claim of the plaintiff for grant of ad interim relief, it will have to be ascertained whether the work of the defendants is similar in material and substantial aspects with that of the plaintiff.

       The standard to be applied, therefore, is not to compare the two work with hypercritical and meticulous scrutiny but from the stand point of the observations and impressions of an average viewer. As presently advised, there are striking similarities in the work of the plaintiff as that of the work of the defendants. The programme is not news, it is a reality show (programme). That is the stand now taken by the defendants on affidavit.

       However, from the material available on record, it is seen that the main theme of the plaintiff in her work relating to programme "Work in Progress" has been substantially lifted and borrowed. The matters such as difference in selection process, the families or for that matter of period of airing the programme during the week or a given date, or screening of participants or that it is not anchor-based and the like highlighted by the defendants are of no avail. Those changes are only cosmetic ones.

       Taking overall view of the matter, I have no hesitation in accepting the argument of the plaintiff that the defendants have indulged in infringement of copyright of the plaintiff in relation to her original literary work of programme titled "Work in Progress".

       Copyright Act, 1957 - Sections 2(o) and 14(c)-Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2-Copying of literary work of plaintiff by defendants-Under a different name "summer showdown" which is based on plaintiff’s literary work named as "work in progress" that he had to show that it was used without licence.-The principles on which the action of breach of confidence can succeed, have been culled out as :

       (i) he (plaintiff) had to identify clearly what was the information he was relying on;

       (ii) he (plaintiff) had to show that it was handed over in the circumstances of confidence;

       (iii) he (plaintiff) had to show that it was information of the type which could be treated as confidential; and

       (iv) he (plaintiff) had to show that it was used without licence or there was threat to use it.

       The Division Bench in Para 13 of the same decision has culled out the above said principles relying on the decision in the case of CMI Centers for Medical Innovation GMBH and another v. Phytopharm PLC, reported in 1999 Fleet Street Reports 235. It is further noted that at interlocutory. Stage, the plaintiff does not have to prove (iii) and (iv) referred to above, as he will at the trial. But the plaintiff must address them and show that he has atleast seriously arguable case in relation to each of them.

       Copyright Act, 1957 - Section 2(o) - Concept note of literary work - A literary work within meaning of Section 2(o) of Act - Reproduction or adaptation of that work in any form by defendants - Attraction action of infringement of copyright - For considering such claim, Court will go by broad observations and impressions of an average viewer. - The concept note as well as the further developed concept note and the production plan, it cannot be disputed, can be described as ’literary work’ of the plaintiff in relation to which there was existing copyright in her favour. Reproduction or adaptation of that work in any material form or any substantial part thereof by the defendants would clearly attract the action of infringement of copyright. For considering such claim, it is well established that the Court will not enter into hypercritical and meticulous scrutiny but go by the broad observations and impressions of an average viewer.

       Copyright Act, 1957 - Sections 2(o) and 14(c) - Concept of literary work - Confidentiality of - Claim of - A party can it even in relation to a "concept or idea" - Un- like in a claim in infringement of copyright - If plaintiff satisfies specified parameters to succeed in such claim. - For the purpose of action in breach of confidentiality it is well established position that a party can claim confidentiality even in relation to a "concept or idea" unlike in a claim or action in infringement of copyright - if the plaintiff were to satisfy the specified parameters to succeed in such action.

       Copyright Act, 1957 - Sections 2(o) and 14(c) - Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2 - Infringement of copy-right - Grant of injunction - Delay in - In case of infringement either of trade mark or of copyright - An injunction must follow - Delay in bringing action - Not sufficient to defeat grant of injunction. - In case of infringement either of trade mark or of copyright, normally, an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases