Back
IN THE HIGH COURT OF DELHI
Manmohan Sarin,Manmohan
Autodesk Inc - Appellant
Versus
A.V.T.Shankardass - Respondent
FAO(OS) 116/2008
Decided On : 04-07-2008
Local Commissioner - Copyright Infringement - Anton Piller KG Vs.Manufacturing Processes Limited, Tribhovandas Purshottamdas Thakkar vs. Ratilal Motilal Patel, Kanya Junior High School, Bal Vidya Mandir, Etah, U.P.Basic Shiksha Parishad, Payani Achuthan Vs.Chamballikundu Harijan Fisheries Development Cooperative Society, Basanta Kumar Swain VS.Baidya Kumar Parida - The court discussed the appointment of a Local Commissioner in cases of infringement of copyright in computer software and piracy, and laid down guidelines for exercise of discretion in such matters. The court emphasized the importance of preserving and protecting the infringing evidence, the element of surprise, and the need for an ex parte appointment of a Local Commissioner to prevent the alteration of the actual position. The court also highlighted the significance of following the decisions of the Division Bench and the binding nature of judgments of courts of coordinate jurisdiction and Division Benches.
Fact of the Case:
The appellants, owners of copyright in software 3DS Max and Autodesk Maya, filed a suit against the respondents for copyright infringement. They sought appointment of a Local Commissioner ex parte to preserve evidence of unlicensed software usage. The learned Single Judge dismissed the application for appointment of a Local Commissioner, leading to the appeal.
Finding of the Court:
The court found that the learned Single Judge erred in holding that the appellants did not have a strong prima facie case. It emphasized the importance of preserving and protecting the incriminating evidence and highlighted the necessity of an ex parte appointment of a Local Commissioner to prevent the alteration of evidence. The court set aside the impugned order and laid down guidelines for the appointment of a Local Commissioner in software infringement and piracy matters.
Issues: The issues included the dismissal of the application for appointment of a Local Commissioner by the learned Single Judge, the preservation of incriminating evidence, and the need for guidelines for the appointment of a Local Commissioner in cases of copyright infringement in computer software and piracy.
Ratio Decidendi: The court held that the learned Single Judge erred in not passing orders to preserve and protect the incriminating evidence. It emphasized the importance of an ex parte appointment of a Local Commissioner to prevent the alteration of evidence and highlighted the binding nature of judgments of courts of coordinate jurisdiction and Division Benches.
Final Decision: The impugned order was set aside, and the court laid down guidelines for the appointment of a Local Commissioner in software infringement and piracy matters.
1. This appeal has been preferred by the appellants aggrieved by the order dated 5th March, 2008 passed by the learned Single Judge, dismissing IA No.2852/2008 praying for appointment of a Local Commissioner ex parte.
2. The appellants are the owners of copyright in world famous software 3DS Max and Autodesk Maya. Appellants finding infringement and unauthorized use of their software, filed a suit against the respondents for permanent injunction to restrain infringement of copyright, delivery up, rendition of account of profits and damages etc for unlicensed usage of their software. The suit was accompanied with an application for interim injunction and application for ex parte appointment of Local Commissioner being I.A No. 2852/2008. Summons in the suit were issued and notice in the IA under Order 39 Rule 1 and 2 CPC was issued. However, the application for appointment of a Local Commissioner was dismissed by the impugned order against which the present appeal has been filed. While issuing notice in the appeal, we also appointed ex parte Local Commissioner to visit the premises of the respondents to make out an inventory of the unlicensed software belonging to appellant no.1 found to be in use by respondent. Local Commissioner was also permitted to take into custody the Central Processing Units (CPUs), Floppy Discs/DVDs and take the assistance of representatives of the appellants and their technical expert. Reasons for appointing Local Commissioner ex parte, pending notice in the appeal are duly recorded in our order dated 10th March, 2008.
3. Report of the Local Commissioner has since been received. He found incriminating evidence of unlicensed software being used and took possession of the same. There have been negotiations thereafter between the appellants and respondents. We were finally informed on 26th May, 2008 of proposed settlement filed before the learned Single Judge, copy of which has also been tendered before us.
4. Accordingly, for all practical purposes with the appointment of Local Commissioner pending notice in appeal and the execution of the commission, the grievance against the impugned order stands redressed and relief granted. However, the appellant and contesting respondent both urged before us that in view of divergent views and orders being passed by Single Benches on the request for appointment of Local Commissioner in cases of infringement of copy right in computer software and of piracy, it was of critical importance that the Division Bench lays down guidelines for exercise of discretion in such matters. Accordingly, we, in our order dated 10th March, 2008, while appointing Local Commissioner indicated that we proposed to lay down the guidelines for exercise of discretion. Appellant and respondent have been heard on this aspect and suggested guidelines filed by them perused.
5. We now proceed to deal with the appeal on merits and are taking the present case as an illustrative one for the purpose of laying down the guidelines.
6. Appellant-Autodesk Incorporates while seeking appointment of Local Commissioner had pleaded that they were the owners of the world famous software 3DS Max and Autodesk Maya having copyright therein. The said software had attained international acclaim for being a pioneer in designing and in animation programmes. Appellant had filed a suit inter alia for infringement of the copyright, rendition of account, damages of Rs.20 lacs in which as noted above, a settlement has been arrived at. The appellant claim to have authorized and granted a single licence to the respondent-Media Factory India Pvt. Ltd for use of software 3DS Max. The alleged use of software in 29 other computers by the respondent was unauthorized and infringement of copyright. No licence had been granted for the software Autodesk Maya. Appellant had sought an ex parte injunction in which notice had been issued. The appointment of a Local Commissioner ex parte was sought on the ground that
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
