( 1 ) THIS is an application seeking grant of an ad interim injunction in a suit filed by the plaintiff seeking relief of permanant ajunction restraining the defendants No. 1 and 2 from publishing, printing or selling 3pics of question papers and for rendition of account delivering up etc. complaining of infringement of plaintiffs copyright by defendants No. 1 and 2.

( 2 ) THE plaintiff Rupendra Kashyap is proprietor of M/s Som Sudha Prakashan dealing in publication of educational books. According to the plaintiff, he is an exclusive licensee of the Central Board of Secondary Education, defendant No. 3 (hereinafter, CBSE for short) in respect of past year s question papers prescribed for class X and XII examinations being conducted year tyear from 1990 onwards by defendant No. 3 and therefore is the owner of the copyright under section 54 of the Copyright Act 1957. No one other than the plaintiff could publish, print, reprint, reproduce sell or offer for sell in any form the past years question papers of the examinations conducted by defendant No. 3. However, in breach of the rights of the plaintiff, defendants 1 and 2 are publishing question papers of the CBSE s examinations which is an infringement of the plaintiffs copyright.

( 3 ) THE CBSE defendant No. 3 has supported the plaintiff. According to it no person other than the plaintiff could print, reprint, produce or reproduce, publish, distribute, circulate, sale or offer to sell, past years question papers of CBSE except the plaintiff in accordance with the terms of agreement entered into between the plaintiff and CBSE.

( 4 ) THE defendants No. 1 and 2 are contesting parties and have raised very many pleas to attack the relief sought for by the plaintiff. It is submitted that the suit is not maintainable as there is no assignment in favour of defendant No. 3 from the authors of the examination papers. A form signed by the author accompanying the letter offering him to set the paper does not operate as an agreement to assign copyright. The author is not the sole author but examination papers are prepared by several persons and moderated by another person and so being a joint work of each of such persons they arc co- authors. It is incumbent in law for the plaintiff to trace the title to each of the persons who have contributed to the said examination paper.

4. 1 Section 52 (1) (a) (i) and Section 52 (l (b) (iii) of the Copyright Act, 1957 confer upon the defendant a complete defence inasmuch as they have been using the Board examination papers as a part of their several works and books in various forms in which they include answers to the said questions which are completely composed by them or persons on their behalf and in this view of the matter what they are doing is a fair dealing of the literary work for purposes of research and private study.

4. 2 It is also submitted that the defendants have been printing and publishing questions papers for over 25 years and ever since the inception of the Board in the year 1952. The defendants are two out of 30-40 publishes over the country who arc engaged in such activity for the past decades. Thus the suit suffers from laches, acquiescence and inordinate delay.

4. 3 It is also submitted that the suit is against public interest, as a Government organisation having been given the responsibility to conduct examination cannot be permitted to monopolise publication of question papers which are required by students for the purpose of their study and research.

( 5 ) THE written statement Filed by defendant No. 3 has been amended so as to introduce the additional pleas in defence by reference to Section 17 (dd) of the Copyright Act. It is submitted that CBSE came into existence in its present form on 1. 7. 62. It is a society registered under the Societies Registration Act, 1960. It is controlled by the Secretary, Department of Education, Ministry of Human Resource Development. It was constituted to conduct examinations