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High Court Of Delhi
RUPENDRA KASHYAP - Appellant
Versus
JIWAN PUBLISHING HOUSE PRIVATE LIMITED - Respondent
Suit 1679 of 1993
Decided On : 12/16/1993
COPYRIGHT - QUESTION PAPERS - OWNERSHIP - CENTRAL BOARD OF SECONDARY EDUCATION - LICENSEE - COPYRIGHT ACT, 1957 - SECTIONS 17, 18, 19 - PRESS AND REGISTRATION OF BOOKS ACT, 1867 - SECTION 18(14) - COPYRIGHT CONVENTION REVISED AT PARIS IN 1971 - ARTICLE III - CLAIM TO COPYRIGHT - FORMALITIES - REGISTRATION - NOTICE.
Fact of the Case:
The plaintiff, claiming to be an exclusive licensee from the Central Board of Secondary Education (CBSE) for publishing 10th and 12th class papers, sought to restrain the defendants from publishing the same papers, asserting that they did not have a similar license.
Finding of the Court:
1. Question papers are copyrightable subject matter as they are a compilation of questions requiring answers from examinees, akin to tables, and created with skill and labor. 2. Copyright in a work vests in the author, who is the first owner, under Section 17 of the Copyright Act, 1957. 3. The CBSE, not being the author of the question papers, cannot claim copyright unless it has an agreement with the paper setters, the authors, assigning the copyright to it. 4. No such agreement was produced before the court, and the documents filed in a sealed cover were returned to the CBSE. 5. The question paper in English Course "a" did not bear any claim to copyright, such as the symbol (C), the expression "copyright reserved," or the name of the copyright proprietor. 6. The absence of a claim to copyright in the question paper is significant, as it is required under Section 18(14) of the Press and Registration of Books Act, 1867, and Article III of the Copyright Convention revised at Paris in 1971. 7. The plaintiff's plaint did not disclose any cause of action and was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.
Issues: 1. Whether the question papers are copyrightable subject matter. 2. Who is the owner of the copyright in the question papers - the CBSE or the paper setters? 3. Whether the CBSE can claim copyright in the question papers without an agreement with the paper setters assigning the copyright to it. 4. Whether the absence of a claim to copyright in the question paper affects the plaintiff's claim for copyright infringement.
Ratio Decidendi: 1. The court held that question papers are copyrightable subject matter as they are a compilation of questions requiring answers from examinees, akin to tables, and created with skill and labor. 2. The court further held that copyright in a work vests in the author, who is the first owner, under Section 17 of the Copyright Act, 1957. 3. The court also held that the CBSE, not being the author of the question papers, cannot claim copyright unless it has an agreement with the paper setters, the authors, assigning the copyright to it. 4. The court found that no such agreement was produced before it, and the documents filed in a sealed cover were returned to the CBSE. 5. The court also noted that the question paper in English Course "a" did not bear any claim to copyright, such as the symbol (C), the expression "copyright reserved," or the name of the copyright proprietor. 6. The court concluded that the absence of a claim to copyright in the question paper is significant, as it is required under Section 18(14) of the Press and Registration of Books Act, 1867, and Article III of the Copyright Convention revised at Paris in 1971.
Final Decision: The court rejected the plaintiff's plaint, holding that it did not disclose any cause of action and was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.
( 1 ) THE plaintiff claims to be the exclusive licensee from the Central Board of Secondary Education for the purposes of publication of papers of 10th and 12th class.
( 2 ) IT is claimed by the plaintiff that there is a licence in his favour, given by the Central Board of Secondary Education to publish the said papers.
( 3 ) BY this suit, the plaintiff seeks to restrain the defendants No. 1 and 2 from publishing the very same papers, asserting that they do not have a similar licence that the plaintiff has, and being a licensee, he is entitled to restrain the said defendants form publishing the said papers.
( 4 ) THE question papers for examination are nothing but a collection of questions which are required to be answered by each examinee. They are akin to "table". questions having been tabulated. As each question is stringing together of words of the language in which the questions appear, creating "expression", which formulates concepts that neex exposition, which need to be explained by the person taking the examination, the questions having come into being on account of skill and labour of the person who prepared the questions, each question would be copyrightable matter, and a compilation of questions which make up the question paper is copyrighlable subject matter, it is a work. within the meaning of the Copyright Act.
( 5 ) AS to who has copy right in the matter, is controlled in India by the provisions of the Copyright Act, currently the Copyright Act, 1957.
( 6 ) BY virtue of section 17 of the Copyright Act copyright vests in the author of the work. The question paper is a "work" within the meaning of the Copyright Act. The author of the examination paper is a person who has compiled the questions. The persons who does this compiling, is a natural person, a human being, and not an artificial person. The Central Board of Secondary Education is not a natural person. It can per se be the author of the papers, entitled to claim copyright in the examination papers. The Central Board of Secondary Education would be entitled to claim copyright in the examination papers only if it establishes and proves that it has engaged persons, specifically for the purposes of - preparation of a compilation, known as question paper, with a contract containing a term that vis-a-vis the question paper prepared by the person engaged for that purpose, that person shall not have copyright, and that the copyright would vest in the Central Board of Secondary Examination, insted of the author of the question paper.
( 7 ) THE Central Board of Secondary Education has not filed this suit. The suit has been filed by a person, who claims to have licence from the Central Board of Secondary Education to print the question papers.
( 8 ) NO person can give what it does not have. Unless the Central Board of Secondary Education has ensured that the copyright which statutorily vest in the author of the question paper, that is to say the person who has prepared each of the questions in each of the question papers, and the question paper as a whole, by exercise of his skill, knowledge and judgment, who could claim a copyright in that question paper, it has no power to grant licence to print or re-print that question paper. To sustain a claimable copyright in the Central Board of Secondary Education, there must be an agreement between the Central Board of Secondary Education and the person who has prepared the question papers to the effect that whatever copyright may be claimable by the "paper setter", would not vest in him because of the terms of his engagement before the Central Board of Secondary Education and the paper setter, but shall vest exclusively in the Central Board of Secondary Education. No copyright can come to vest in the Central Board of Secondary Education unless such an agreement is proved or established prima facie.
( 9 ) THE plaintiff has not asserted the above said essential facts in his plaint. He, however, asserts ba
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