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2012(3) ALL MR 209
In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.B. CHAUDHARI
Dhiraj Dharamdas Dewani
Versus
M/s Sonal Info Systems Pvt. Ltd. & Others
First Appeal No.1076 of 2011
Decided On: 06-03-2012
Perusal of Section 51 clearly shows that infringement shall be deemed when exclusive right to do of the owner of the copyright is utilized by some other person viz., the infringer. Now unless such person (the infringer) knows that there is any particular owner of the copyright in India or that such owner of copyright has registered his work under Section 44 of the Act before he did, attributing infringement by him or on his part intentionally or unintentionally, would be preposterous. Such a person who is infringing the copyright in a work must be deemed to have knowledge about the owner of the copyright and such knowledge cannot be attributed unless the provisions of Chapter 10 regarding registration of copyright, publication thereof etc. are complied with. Otherwise a person who is innocent can in that event be easily brought in the net of infringement under civil law or criminally, which can never be the intention of the Legislature. Thus, if an owner of a copyright wants to invoke the provisions of Copyright Act for enforcing civil and criminal nature of remedies before the special forum, namely the District Judge rather than a normal Civil Court, he must have the registration. A person knowingly making use of a computer by infringing copy of a computer programme shall be criminally liable.
It is well settled that provisions relating to penal provisions are required to be interpreted strictly. Now if there is no registration of copyright by its owner and such owner of a copyright is not known to the infringer due to non-registration of the copyright he still would be held criminally liable under these provisions. To make a person liable criminally, it will have to be shown that such a person was fully knowing about the owner of the copyright and that he indulged in infringing the said copyright despite knowing the ownership thereof. If registration is not made and published in the official Gazette such infringer cannot be expected to be aware nor can he be attributed knowledge about the ownership of the copyright of a particular copyright owner and in that event the Criminal Court would not be able to convict such, a person. That may lead to chaotic situations. Similarly, reading of Section 64 regarding power of police to seize shows that police officer will have to get himself satisfied that a particular person (complainant) is the owner of copyright and he will be so satisfied if such a copyright is registered. When both the complainant and the alleged infringer claim that their product was launched first and that their copyright work was made first, in the absence of registration under Section 44 of the Act, how the police officer will be satisfied to proceed to take cognizance. The police officer in that case would not be able to move an inch to effect seizure of the alleged infringing copies. After all the provision regarding seizure is another serious act, which infringes upon the privacy of a person. Hence, the word ’may’ used in Section 45 of the Act will have to be read as ’shall’ having regard to the scheme of the Act.
Copyright Act, 1957 - Section 55 - Suit by owner of a copyright. A suit, under Section 55 of Act for injunction and damages can be filed by owner of a copyright.
Copyright Act, 1957 - Sections 55 and 60 Proviso - Suit by infringer. When owner of a copyright has already filed a suit under Section 55 of Act proviso to Section 60 of Act prevents filing of suit by alleged infringer.
Copyright Act, 1957 - Sections 55, 60 and 64 - FIR. Lodging of FIR, is a step to set up criminal law in motion with a view to initiate criminal proceedings or criminal liability.
1. Heard. Admit. Taken up for final disposal with the consent of the learned Counsel for the rival parties.
2. This appeal was taken up for final disposal with the consent of the Counsel for the rival parties in view of the fact that application under Order VII Rule 11 of the Code of Civil Procedure filed by the respondent/defendant was allowed and consequently, the appellant contended that he stands without any remedy.
FACTS
3. The appellant is the original plaintiff, who filed Special Civil Suit No.3/2010 in the Court of District Judge _ 5, Nagpur under Section 60 of the Copyright Act, 1957 for declaration and permanent injunction. He averred that he developed a software to facilitate the professionals like Income Tax Advocates, Chartered Accountants, Sales Tax practitioners, Accountants in their professional work. The objective is to facilitate automatic preparation of return, namely form No.231 to 324, to validate 'E3 returns' with inbuilt validation, utility and auto calculation facility etc. amongst so many other functions and programmes developed in the said software. It was processed since the year 2005 and finally was launched in the market in the year 2007. The software became popular in the market and consequently, the competitors of the plaintiff including the respondents/defendants started creating obstacles in the marketing of the said product. As a result of the intention of the respondents to obstruct the plaintiff from doing his business of marketing the said product, the respondents filed F.I.R. with Police Station Nasik on 30.1.2010 which registered as Crime No.3007/2010 under Sections 63 and 65 of the Copyright Act. Acting on the said F.I.R., Nasik police suddenly visited the premises of the plaintiff on 3.2.2010 without any knowledge or intimation to the plaintiff and seized various materials from his office and went away. Even before the said action and thereafter the respondents started oral campaign about the plaintiff's said product falsely propagating that the product was not of good quality and so on and so forth. The plaintiff having no alternative filed Special Civil Suit No.3/2010 on 3.3.2010.
4. Thereafter, the respondents/defendants on 29.3.2010 filed a suit under Section 55 of the Copyright Act in the Court at Nasik vide Civil Suit No.1/2010 and also obtained ex parte injunction on 15.4.2010 and upon appearance of the present plaintiff before the Nasik Court and after hearing the parties, the said Court on 14.10.2010 suspended the said order of ex parte injunction till the decision on the application under Order VII Rule 11 of the Code of Civil Procedure filed by the respondents in the civil suit at Nagpur. In the civil suit at Nagpur the respondents/defendants filed an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint on the ground that Section 60 suit filed by the plaintiff was hit by its proviso since the defendants had already filed a suit in the Nasik Court with due diligence and in the police action F.I.R. was filed and now chargesheet has been filed against the appellant/plaintiff. Another reason to claim rejection of the plaint was nondisclosure of true cause of action. The said application was decided by the District Judge by his order dated 22.6.2011 and was allowed. The said order of rejection of plaint dated 22.6.2011 was challenged before this Court in First Appeal No.667/2011. This Court disposed of the said appeal on 17.9.2011 and set aside the order of rejection of plaint dated 22.6.2011 with the consent of the parties and after framing two questions asked the trial Court to decide them in accordance with law. The trial Court heard the parties on the said two questions framed and decided the application and again rejected the plaint by allowing the said application by the impugned order dated 10.10.2011. Hence, this appeal against the said order dated 11.10.2011.
SUBMISSIONS:
5. In support of the appeal, learned Counsel for t
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