The Chancellor Masters and Scholars of the Univerisity of Oxford v. Narendra Publishing House and Ors

order to reach at any conclusion in this regard, it is necessary to examine the requirement of originality under abovementioned Section concerned tests developed under IPR jurisprudence by Indian as well as foreign authorities and the courts.

¶13Black's Law Dictionary (7'*' ed.) defines originality as "the quality or state of being the product of independent creation having a minimum degree of creativity." It further says that although "originality is^ a requirement for copyright protection but this is a lesser standard than that of novelty in patent, law." Justice Frank in ASfred BeH & Co. -¥s. CataSda Fine Arts, Inc,, [191 F .2d 99, 102 (2"^ Cir . 1951)] observed that "original" in reference to'a copyrighted, work means that particular work 'owes it origin to the author.' No large measure of novelty is necessary." J A L Sterling in his celebrated work titled "World Copyright Law" clearly summaries the English position on the issue of originality as below: "Although a number of interpretations have been given to term, there are certain points on which agreement seems to have been firmly established. Primary among these points are two basic concepts, First that the work must not be merely a copy of a previous work, secondly that the work is the result of the investment of individual skill,judgment or labour" [ Page 303, 2"'* ed.]"

¶14In United States, originality is constitutional requirement under the copyright clause of the constitution and-is~a sine qua non of the copyrightability. Earlier, in the. United States, judicial trend, to trace out elements of originality in a given work was to focus on the "Sweat of tlhe brow" test or the industriousness. However, there has been a consistent shift from this approach towards a test based on "creativity". Feist PubHcatioins, Inc., v. Rural TeSephome Service Co., 499 U.S. 340 (1991), is a glaring example of this shift wherein the Supreme Court of the United States was categorical to observe that "as a .constitutional matter, RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008' 3' copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity."

15." The Supreme Court of Canada in the matter of CCH Canadian Ltd. Vs. Law. Society of Upper Canada 2004

(1) SCR 339 (Canada) has noticed the competing views on the meaning of "original" in copyright law wherein some courts have held that a work which has originated from an author and is more than a mere copy of a work, is sufficient to give copyright.

¶16The Supreme Court of India has found many occasions to reiterate that the test of originality in India is same as in the UK which is based on the "skill, Judgmerat labour". In Eastern Book Company and Ors. Vs. D.B. Modak and Anr.( AIR 2008 5C 809), Indian Apex court was categorical to observe that: "Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity."

¶17This requirement of originality, under the Copyright Act, 1957, is that of expression and not of idea. In University of London Press Limited V, University Tutorial Press Limited [1916] 2 Ch 601, J. Peterson observed that: "The word "original" does not in this connection mean that the work must be the expression of original, or innovative thought. Copyright Acts are not concerned with originality of ideas, but with the expression of thought. The originality which is. required relates to the expression of •thoughts. But the Act doesn't require that the expression must be in the original or novel form, but that the work must not be copied from another's work-that it must originate from the author." Page. 14 of 89 Vo

¶18The abovementioned UK approach has becorhe a standard all over the globe in process of judicial determination regarding whether a work is copyrightable or not. The Indian Supreme Court, in'Eastern Book Company and Ors. (supra) : cited aforementioned judgment with approval . and categorically observed that "The Copyright Act is not concerned with the original idea but with the expression of thought."

¶19In the instant case, to adjudicate upon the issue as to whether the finding of the Id. single judge that there subsists no copyright in the' work of the appellant because of there being no originality or invention in composing grarhmar sentences or exercises, is sustainable or not, we need to view it from two perspectives. Firstly, whether the.appellant^s work satisfies the "originate from the author" test coupled with the requirement of "skill, judgment and labour" and secondly, whether the grammar sentences exercises in question are copyrightable expressions evolved upon the un-copyrightable •ideas pertaining to the knowledge of grammatical constructs of the English language.

¶20At the very outset, it would be of interest to note that in the • United States, a major impetus for copyright protection enactment, as indicated by Thomas B Nachbar in his "Constructing Copyright's Mythology" (6 Green Bag 2d 37, 43-44 (2002))., was Noah Webster's desire for protection of his u nearly completed, or, as was the case in some states, both, completed and published spelling and grammar book.

¶21Adverting to the first facet, it would be of interest to note that as observed by learned Single Judge himself in the impugned order "the defendants did not really contest copyright of the plaintiff". Obviously, because of this reason, no issue is carved out thereupon, viz., whether the appellant had copyright in its publication. However, still this issue arises for consideration before us detailed arguments were advanced in view of the following observations contained in Para 13 of the impugned judgment: "13. The exercises and answers thereto, which have been copied are to teach grammatical use of words, tense etc. Sentences, sometimes with blanks have been framed for the said purposes. The same, in my opinion also do not constitute original literary, dramatic or artistic works. No originality or invention is displayed in composing the said exercises based on day to day use of simple English • language meant for learning thereof. The plaintiffs' cannot claim any monopoly in the same. The Apex court in . Eastern Book Company (supra) (though confining to the decision to judgment of courts only) has held that collection of material and addition of inputs in the raw text does not give work a flavor of minimal requirement of creativity, as skill and judgment required to produce the work are trivial. To establish copyright, the creativity standard applied is n.ot that something must be novel or non obvious, but some amount of creativity in the work to claim copyright is required. In that case selection arrangement was viewed as typical at best result of labour, skill investment of capital, lacking even minimal creativity, which did not as a whole display sufficient originality so as to amount to an original work of the author. It was further held, to claim copyright there must be some substantive variation and not just a trivial variation, not the variation of the type where limited ways of expression available author selects one of them. The court held the inputs by publishers of Supreme Court cases in copy edited judgments to be minimal. The Apex court in that case also . applied the principle/test of public domain reiterated that once the work is in public domain, its reproduction or publication would not constitute infringement of copyright."

¶22Normally,when the respondentvirtuallyacceptedthe copyright of the appellant in its publication"Advance English Grammar by Martin Hewings" and in the absence of any issue on this aspect, the learned Single Judge was supposed to proceed on the basis that the appellanthad a copyrightin the said work. However,it appearsthat the aforesaidobservationscame to be made and findings arrived at, at a particularjuncturewhen the learnedSinglejudge,was examiningthe patternand use of two .1 books, viz., that of the appellantand the guide books of the respondents. There is no disputethat insofaras the text of the appellant'swork is concerned, the appellant can legitimately claim copyrighttherein, it is the questionswhich are given by the a.uthor at the end of each chapter, which was the limited facet dealt with by the learned Single Judge holding that no originality or invention was displayed in composing exercises/questions based on day to day use of simple English language and meant for learning thereof. It is, therefore, this part which needs to be examined when we are discussingthe question of copyright of the appellant in its book as to see whether there is.any "creativity, skill and judgment" in devising those exercises/questions at the end of each chapter of the book.

¶23To answer this facet and to judge as to whether the approach of the learned Single Judge is in conflict and we feel it tf^ appropriate to first state tlie flavour of the book authored by [Vjartin Hewings. Cornplete title of this book is as under: Grammar A-self-study Reference . Practice book for Advanced' sought as Ian students wmmimmm • Martin IHewSings"

¶24It is, thus, English Gramrnar book for students undertaking higher studies. The author had specifically in mind South Asian students for whom he undertook • project, i.e., to produce 'a study reference and .practice : book. Specific stress is laid In the title itself that this book is "WITH ANSWERS". There are introductory messages "TO THE STUDENT" as well as" "TO THE TEACHER" explaining them as to what the book abp.ut and how it is to be used. 'It is specifically mentioned that the book Is written mainly as a self-study, but it can also be used in. a class with-a teacher. There are units in the book, each dealing with a particular area of Grammar. It would be relevant to extract' the portion of "How the book is organized" and "How to use the book", which reads as under: • "How the book is organized There are units in book. Each one looks'at a particular area of grammar. Some sections within each unit focus on. the use of a grammatical contrasts, such as RFA (OS) No.21 of 2009 and.'FAO (OS) No.458 of 2008 Page 18 of whether to use would or used to to /eport past events^ r when we use because or because of. The 120 units are grouped under a number of headings such as Tenses and Modals. You can find details ofthis in the Contents on pp. iii-vi. Each unit consists of two pages. On the !eft-hand page are explanations and examples; on the nght are practice exercises. 'The letters next to each .exercise show you which sectionsof the left-hand page you need to understand to do that exercise. You can check you answers in the Key on page

¶289The Key allso comments on some of the answers. Four Appendices tell you about passiveverb form, quotation,irregularverbs and Typical Errors (see below). To help you find the informationyou need there is an Index at the back of the book. Although terms to describe grammar have been kept to a minimum some have been included, and you can find explanations ofthese terms in the Glossary on page 265. On each left-hand page you will find a nuniber of symbols. These are included to show kinds of mistakes that students often make concerning the grammar point being explained. These Typical Errors are given in Appendix 4 on page 245, together with a correction of the error, and an explanation where it is helpful. The symbol is used to show you when it might be useful to consult a dictionary. On the explanation pages it is placed next to lists of words that follow a particular grammatical pattern, on the exercise pages it is used, for exampSe, to show where 5t necessary to understand what particular 'words mean in order to do exercise. Good English - English dictionaries include.the Cambridge International Dictionary of English, the Longman Dictionary of Contemporary English, the Oxford Advanced Learner's Dictionary, Collins Cobuild English Language Dictionary. How to use the book It is not necessary to work through the units in order. If you know what grammar points you have difficulty with, go straight to the units that deal with them. You can use the Index to help you find the relevant unit or units, if you are unsure which units to study, use the Study Guide on page

¶280You can use the units in a number of ways. YoiU might study the expHanation and examples first, do the exercises on the opposite page, check you answers in the key, and then look again at the explanations if you made any misstates. If you just want to revise a grammar point you think you already know, you could do the exercises first and then study the explanations for any you r got wrong. You might of course simply use the book as a reference book without doing the exercises. A number of Additional Exercises are smclyded for further practice of particular areas of granmmar." (emphasis supplied)

¶25It is clear from the above that while structuring the book, the author had given equal importance to the practice exercises, which form integral part of the book. Even additional exercises are included for further practice of particular areas of grammar. Some messages given to teachers as well who could usefully made use of book for supplementing supporting their class room teachers.

¶26As is clear from the above introductory narration, each unit dealing with particular area of grammar is in two pages. On the left page, that area of grammar is explained as study book. On the opposite page exercises are provided which he is supposed to undertake to find out whether he has understood that particular area of grammar or not. To ascertain as to whether he has correctly solved the exercise "Key" is provided at the end. Thus, in the scheme of things devised by the author to teach grammar to more advanced students of English as a self-study, he has made these exercises inseparable part of the book. In such a scenario, it is difficult to accept rationale of the learned Single Judge that no creativity, skill or judgment has gone into while devising the exercises. It would clearly be a matter of skill and judgment to decide as to what Page 20 of !B9 r type of questionsbe put in the exercise portion to ensurethat by solving such questions, the student has understood that particulararea of grammar. Creativityis writ large in devising these exercisescoupled with great deal of skill and judgment that is required to produce such a work. This would become manifest when we take note of one of the units explaining a particulararea of grammar. We have chosen Unit 36 dealing with "Verbs with and withoutobjects"at random.'This consists of two pages like any other Unit. Left page explains such •subjectand on the right page; exercisesare there. These two pages read as under: "UWIT 36 Verbs with objects without A Study sentence in this table: subject + verb parts Object Other Did you see your sister weekend? at the .He described the new building. They arrived hours late. three He coughed. Some verbs (e.g. see, describe) are followed by an object. These are called transitive verbs. Other verbs that are transitive in their most common meanings include arrest, avoid, do, enjoy, find, force, get, give, grab, hit, like, pull, report, shock, take, tell, touch, want, warn. Some verbs (e.g. arrive, cough) are not followed by an object. These are called intransitive verbs. Other verbs that are Exercises

36.1 Correct this text by adding an appropriate object or completion (a phrase beginning with a preposition or adverb) only where necessary. (A, B & C) Sandra is being question by a barrister in court. BARRISTER: Could you begin by telling what happened on evening of the 26'^ July. SANDRA; Yes, I . was walking home from work when I saw someone who I thought was my friend, Jo. 1 went up to her and touched on the arm. But when the woman turned round it wasn't Jo at all. I just said, "I'm sorry, I mistook you." BARRISTER: And could you describe in detail. SANDRA: Well; to be honest, her face shocked. She reminded of a witch from a children's story - a long nose and staring eyes. When I tried to walk, she stood. I Page 21 of r intransitive in their most common meanings include appear, come, fall, go, happen, matter, sleep, swi m, wait. If a verb can't be followed by an object, it can't be made passive (see Unit 29) Verbs with objects. without B Some verbs can be both transitive intransitive. Compare: e • 1 closed the door, ® The door closed Verbs like this are often used to talk about some kind of change. Other examples are break, burn, empty, increase, open, shut. Some transitive verbs can have their objects left out when meaning is clear from the context: " He has smoked (cigarettes) since he was

¶10o She-plays (the saxophone) beautifully. Other verbs like this include answer, ask, cook, dance, drink, eat, fail, phone, read, sing, wash, win, write. C After some verbs we typically or always add a completion - a phrase , which completes meaning of the verb - which can be an adverb or. prepositional phrase. Compare: o He paused for a few moments, or o He paused. (no completion needed) o The disease originated in Britain, {not The disease originated.) (completion needed) Some verbs which are typically or always followed by a completion are intransitive in their most common meanings: e I'm sure that blue car couldn't avoid. She grabbed prevented from escaping. struggled, but she pulled into a car parked nearby. She forced to give my purse and she wanted to give my ring, too. But I wasn't going to let her take. So 1 hit with my bag and leapt. Then I just ran. At first 1 could hear her following, but then she disappeared.. After than 1 ran into town centre and reported to the police. They took a statement, and then they drov.e' me and-warned to lock my doors windows. Later that night they phoned to say that they had arrested.

36.2 Complete these sentences with .one of these phrases + an appropriate prepositi on. (C) my children my ladder my students his calculation the idea

1.At beginning of term I supply ..- a list of books 1 want them to read.

¶2A company wants to build a huge new wildlife part outside Huddersgate, but local people regard ridiculous.

3.1 tried to interest washing my car, without success.

¶4He based Government statistics.

5.1 lent my next door neighbour. Now complete these sentences with an appropriate preposition + one of these phrases. a vaccine to prevent disease ' being called English London and Sydney my mother public recognition

¶6The location of film alternates

¶7Their years of research have culminated ,

¶8Although he aspired he remained relatively unknown.

¶9She objects as she was actually born in Scotland. RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008 Page 22 of u Y r belongs to Matthew. ' Wg had to contend with hundreds of complaints, inot We had to contend.) Here are some more examples together with prepositions that commonly begin the completion: alternate between, aspire to, care for, culminate in, object to. Other verbs which are typically or always followed by a completion are transitive in their most common meanings: o I always associate red wine with France, (not I always associate red wine). She put the report on the floor. {not She put • the report.) •Here are some more examples together with prepositions that commonly, begin completion: base..on, compare...with, interest...in, lend...to, misstate...for, prevent...from, regard...as, remind...of, supply...with.

¶10I had to care when she became seriously ill.

36.3 These idiomatic phrases contain transitive verbs. However, the objects can be left out because the expressions are normally used in contexts in which it is clear what is meant. In what context ' are they used? What objects are missing? (B)

¶1You wash and I'll dry.

¶2Are you ready to order?

¶3Do you drink? .

¶4Who scored?

¶5It's your turn to deal.

¶6I'll weed you can wanter."

¶27The exercises depict originality, as it has originated from the author. It is nobody's case that the author has copied these exercises from other source. It also satisfies-the test of "skill, •judgment and labour" as laid down in Eastern Book Company and Ors. (supra).

¶28We may also draw-sustenance from the judgment of the House of Lords in the case of Ladbroke (FootbaHS), Ltd. ¥s, WHIiam HsH (Football), Ltd. [1964] 1 All ER 465. That was a case where the respondents were well-known-bookmakers who had done business for many years in fixed odds football betting ' sending out to their clients each week during the football season a fixecl odds football coupon. The coupon was a sheet •of paper on which were printed sixteen lists of matches to be played each week; each list was headed with an appropriate name and offered a variety of wagers at stated odds and containedexplanatorynotes. One of the lists containedthe full list of matches to be played at the end of the week this list being determined by the Football League who owned the copyright in it. The other lists were shorter lists of matches selected by the respondents.fromthe full list. Altogetherthe coupon offered 148 varieties'ofwager at widely.differingodds. A great deal of skill, judgment, experience and Work had gone into devising the coupon for the respondents had to select from the very great variety of possible wagers those that would appeal to the punter while being profitableto the respondents, and had then to arrange and describe the selected wagers in an attractive way on the coupon. The respondents had not altered their coupon since 1951, though selection of matches in the lists was necessarily changed each week. Some of the wagers offered by the respondents were commonly offered by other bookmakers. The appellants, who were also well-known bookmakers, decided to enter field of fixed odds football betting in 1959, and in devising their coupon for 1960/1961 season they copied from respondents' . coupon fifteen out of the sixteen lists arranging them in the RFA (GS) No.21 of.2009 and FAO (OS) No.458 of 2008 same order as they appeared in the respondents' coupon, in • many cases with same headings almost identical varieties of wager, and with similar explanatory notes.. They did not copy the odds offered by the respondents but worked these out for themselves and since the respondents' and the appellants' coupons were published simultaneously each week there was no copying of matches selected by the respondents. The respondents claimed copyright in their coupon and alleged infringement by the.appellants. By the Copyright Act, 1956, Section 2(1) copyright subsisted in every "original" literary work, a literary work including, by virtue of Section 48(1), •compilation. Under Section 2(5)(a) Section 49(1), copyright gave the exclusive right to reproduce a substantial part of the work in any form.. Though the appellants admitted copyright in respondents' selection of matches statement of odds (neither of which they had copied) they denied copyright in the rest'of coupons. It was not disputed that, as regards a compilation (such as the coupons), originality requisite to render a work original of the purpose of Section 2(1) was a matter of degree depending on the amount of skill, judgment or labour that had been involved in making compilations. It was, held that for purpose of determining whether respondents' coupon had originality requisite to render it original work within Section 2(1) of the Copyright Act, 1956, it was right to take into account the 5c-considerable skill, judgment and labour expended by the respondents in the selection of types of wagers, for the • • productionof the coupons was an object of the work so done and that work-was preparatorywork which could not properly be excluded. Moreover(per Lord Evershed) after the work of deciding the wages had been done, there still remained the further task, requiring considerableskill, labour and judgment, of expressingand presentingthe chosen wagers for the eye of customer.. Accordingly, there was copyright in the respondents'coupon. 29: Giving the quotationof Peterson, J.-in University of Lomjdom Press Ltd. (supra), which is already extracted. above, the Court held that-it was an original work worthy of copyright protection. .Lord Reid, in his opinion, remarked as under: "in the present case, if it is permissible to take into account all the skill, judgment and labour expended in producing the respondents' coupon, there can be no doubt that it is • "original". But the appellants say that the coupon must be regarded as having been produced in two stages: first, the respondents had to decide what kind of business they would do - what kinds of bets they would offer to their clients - and then they had to write these out on paper. The appellants say that it is only the skill, judgment labour involved in the latter stage that can be considered and that that part of their operation involved so little skill, judgment or labour that it cannot qualify as "original". In fact the respondents did not proceed in that way. Their business was to devise a coupon which would appeal to the betting public, and. its form arrangement were not something dictated by previous decisions about the nature of the bets to be offered.. The appellants lil<ened the coupon to a trader's catalogue of his wares, and argued . that in considering whether a catalogue is entitled to copyright one must disregard the trader's skill and work in deciding what wares he will stock for sale only ' consider, skill labour involved in actual preparation of the catalogue. I do not think that that is a true analogy. Even in the case of a catalogue there may be , RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008 s a question wliether tine worl< in deciding wliat to sell and work in deciding how to sell it are not so inter connected as to be inseparable. Copyright in a catalogue in no way prevents honest competition - any other trader can decide to stock and sell any or all of the catalogued articles, and he can thereafter made a new catalogue of his own wares. What he must not do is simply to copy the other traders' catalogue."

¶30On the application of legal principles on the facts of this case, inescapable conclusion would be that there is a copyright of the ^appellant in the exercises contained in the book. ISSUE Mo.

¶31Before we proceed towards this question, it would be pertinent to discuss an ancillary issue thereto. The issue involves interplay between the concepts of "public domain" and "fair use".

¶32The learned Single judge in his judgment has taken the view that one of the reasons why the ad-verbatim reproduction of the plaintiff's work in the guides published by the respondents was falling within the ambit of fair use was that the appellant's work was in public domain as it is a prescribed text book by the University. The appellant has contended before us that the term "public domain" and "fair use" are distinct from each other once a work comes within ambit of "public domain" then there is no question of involvement of the fair use doctrine because the term "public domain" means there is no copyright protection is available at all-to the concerned work. RFA (OS) No.21 of2009 and FAO (OS) No.458 of2008 ' y'2-

¶33From jurisprudentialpoint of view, intellectualproperty rights work as a two way sword. On the one hand, there is a growing awareness that such protection is a sine-qua-non of the motivational factor underlying the creation of an intellectual \A^orl<; however, on the pther hand, granting an absolute protection to the' intellectualwork can be detrimental to the further progress of humanity. In order to balance the rights of the author on the one hand and the society on the other hand certain limitations have been made a part and parcel of the IPR statutes around the globe. In the realm of copyright laws, one of the more important limitations is the doctrine of "fair use." This doctrine of Fair dealing/Fair use is a limitation exception to the exclusive right granted by copyright law to the author of a creative work it allows limited use - of copyrighted .material without acquiring permission from the rights holders.

¶34Black' Law Dictionary ed. defines "Fair Use" as "A reasonable and limited use of a copyrighted work without the author's permission, such as quoting from a book in a book review or using parts of it in. a parody." Thus use of a work, without any prior permission of the author of that work, does not amount to infringement of copyright if the said use can be encapsulated within the ambit of the doctrine of Fair Use. There are four non-exclusive factors that determine ' whether any particularuse counts as fair use or an infringement.These four factors are:

(i) The purposeand characterof the copyrightuse, including whether such use is of a-commercial nature or is largely for nonprofit educational purposes;

(ii) The nature of the copyrighted work itself;

(iii)The substantiality of the; portion used in relation to the copyrighted work as a whole; and

(iv)The effect of the use upon the potential market value of the copyrighted work. A court examines these factors in judging the assertion of infringement by the copyright • owner on the one hand and the assertion of fair use by • the alleged infringer on the other.

¶35The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 52 of the Copyright Act, 1957 as under: "Section 52;

(1) The following acts shall not constitute an infringement of copyright namely-

(a) A fair dealing with a literary, dramatic, musical or artistic work [not being a computer programme] for the purposes of -

(h) The reproduction of a literary, dramatic, musical or artistic work-RFAjOS) No.21 of 2009 and FAO (OS) No.458 of 2008'

(i) By a teacheror a pupil in the course of instruction, or

(ii) As. part of the questions to be answered in an examination, or

(iii) In answers to such questions

¶36The appellant has contended before us, and rightly so, that these two concepts,as discussedabove, are distinctfrom each other. There can be no dispute that the doctrine of fair use is an exceptionto the copyrightprotectionas the opening line of section 52 uses the expression "The following acts shall not constitute an infringement of copyright namely - (a) A fair • dealing with a literary, dramatic, musical or artistic work [not being a computer programme] for the purposes of". This expression implies the without the fair use protection the use shall constitute an infringement of copyright. However, on the other hand, when we say that the work is in public domain it means that no copyright protection is available to concerned work and everyone is free to use that work in whatsoever manner he-wishes to. • 37. It is, thus, clear that when a work is in public domain, the natural consequence is that it'does not enjoy copy right and question of violationthereof would not arise at all inasmuch as anybody and everybody has right to use and/or copy the same. On the other hand, when we talk of "fair use", it would in the RFA (OS) No.21 of2009 and FAO (OS) No.458 of2008 Page 30 of89 context that there is someone enjoys copyright in that work, but the user thereof comes within the domain of eventualities provide under Section 52 of the CopyrightAct. Thus, all the cases of fair dealing are infringements, but the law examines' the same based on the principles of "modicum of creativity", access affordability based on social, economic, educational, industrial, etc. co.nsiderations of society. '38. What follows form the above' is that the two concepts, viz., 'public domain' and 'fair use' work in altogether different fields. When the defence is taken that a particular work is in public domain, question for consideration would arise as to whether the appellants enjoys copyright therein or not. On the other hands, when plea of fair use under Section 52 of the Copyright Act is adopted by the respondents "what is expected from the Court on the application of the provisions of Section of the Act is not to examine whether activity is infringement is not, but to examine whether the conditions stated in a particular clause of Section 52 of the Act invoked by • the respondents is satisfied or not.

¶39However, since respondent herein has taken urinbrage under both, viz., public domain and fair use, we would proceed to discuss both of them independently each other albeit on the premise that these are the pleas taken in the affirmative. RFA (OS) No,21 of 2009 and FAO (OS) No.458 of 2008

¶40If the work of the appellant falls within the public domain, then it would not have any copyright therein no further discussion is needed thereafter. For this reason, we deal with this aspect before addressing "fair use" plea taken by the respondents.

¶41We have already held, while deciding the issue No.l, that there is an elenient of creativity in the work of the appellant involving skill, judgment, endeavour and it is an original work warranting copyright protection. Notwithstanding, the argument of the public domain is founded on the premise that all the materials prescribed by the,university in their syllabus are by their very . nature the property of public at large i.e., it lies in the public domain, and nobody haS'the'right to appropriate such matter for one's own exclusivity. Therefore, in the strict sense, copyright work of the appellant has come into public domain. Since no copyright, if at all, remained with the appellant, question of infringements does not arise. The learned counsel for the respondent has submitted that suit and the present appeal both instituted by the appellant, have been instituted based on an ordinary/general understanding of cases, which have been successfully instituted in the past for infringement of copyright. However, the appellants while instituting both the proceedings have forgotten or intentionally ignored the fact that the present case is a special case and therefore, involves a • scrutiny of special facts circumstances hence, 5::^- general rules applicable to infringement of copyright cases cannot be applied to the instant case.

¶42It would be pertinent here to have a close lool< into this concept as used in the copyright jurisprudence,- before we proceed to appreciate discuss contention of the respondents' counsel.

¶43Firstly, let's deal with term "public domain". Legally speal<ing, term "public domain" refers to "creative materials" that are not protected by intellectual property laws such as copyright, trademark or patent laws. Black's Law Dictionary 7^^ ed. defines "public domain" as "realm of publications, inventions, and processes that are not protected by copyright or patent. Things in the public realm can be appropriated by anyone Without liability for infringement". On the jurisprudential side, although, the issue as to what is the nature of "Public Domain" is somehow gray. There have been intellectual debates as to whether the public domain is simply whatever is left over after various tests of legal protection have been applied, Is it the mere "background," the "negative" of whatever may be protected? Or is there something about the public domain, some compelling public policy or legal principle, that gives it a life of its own, that would tend to attribute positive aspects to it that would make it something of the form instead of just the background? Whatever it may, here, for our purpose, it would be legally safe to rely on negative RFA (OS) No.21 of 2009 and FAO (OS).No.458 of 2008 definition. There are three common ways under which a worl< can be attributed as a worl< in 'public domain':

(i) No copyright protection available: copyright law does not protect this type of work. Section of the Indian Copyright Act provides for the works in which copy right subsists. Section 14 further provides that No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or any other law for the time being in force. When a work falls within ambit of section no further action is mandatorily needed to make it copyright protected.

(ii) Dedication: the owner of a work may deliberately place it in the public domain. Section 21 of the Indian Copyright Act provides that an author may relinquish his copyright by giving a notice to this effect to registrar of copyright if he wishes so.

(Hi) Expiration of copyright: copyright has-expired. Section 22 of the Indian Copyright Act provides that the copyright in a work shall subsist within the lifetime of the author until sixty years from beginning of calendar year next following the year in which the author dies.

¶44Wikipedia, the free encyclopedia, describes the term "public domain" in the following manner: RFA (OS) No,21 of 2009 and FAO (OS) No.458 of 2008 n "The public domain is a range of abstract materials.- commonly referred to as intellectual property - which are pot owned or controlled by anyone. The term indicates that these materials are therefore, "public property", available for anyone to sue for any purpose. The public domain can be defined in contrast to several forms of intellectual property; the. public domain in contrast to copyrighted works is different from the public domain in contrast to trademarks or patented works. Furthermore, the laws of various countries define the scope of the public domain differently, making it necessary to specify which jurisdiction's public domain is being discussed. The public domain is most often discussed in contrast to works whose use is restricted by copyright. Under modern law, most original works of art, literature, music, etc. are covered by copyright from the time of their creation for a lirnited period of time (which varies by country). When the copyright expires, the work enters the public domain. It is estimated that currently, of all the books found in the world's libraries, only about 15% are in the public domain, even though only 10% of all books are still in print; the remaining 75% are books which remain unavailable because they are still under copyright protection. The public -domain can also be defined in contrast to trademarks. Names, logos, other identifying marks used in commerce can be restricted as proprietary trademarks for a single business to sue. Trademarks can be maintained indefinitely, but they can also lapse through disuse, negligence, or widespread misuse, and enter the public domain. It is possible, however, for a lapsed trademark to become proprietary again, leaving the public domain. The public-domain also contrasts with patents. New inventions can be registered granted patents restricting others from using inventions without permission-from the inventor. Like copyrights, patents last for a limited period of time, after which invention covered by them enter the public domain and can. be sued by anyone." It is clear from the above that in the context of copyright, term indicates that the materials which are in public domain are "public property" and available for anyone to use for any purpose. (^6

¶45The questionwould be as to when the creationof a worl< by an individuar becomes "public property"? Normally, whenever a • work is created by an author, he gets copyright therein automaticallyby virtue of Section 13 of the Act and certain rights,are granted to such a copyrightowner as stipulated in •Section 14 of the Act. It is for this reason that in the aforesaid • narration provided by Wikipedia, it is explained that,public domain is discussed in contrast to works whose use is accepted by the copyright. That would imply that once the works is protected by copyright law, it cannot be treated in public domain. Again, it is for this reason that in Wikipedia,example of public domain is given in a case where copyrightexpires by virtue of limited period, protection given under copyright law. Then it enters "public domain". Because of this reason, we have opined above that in orderto ascertain whether a work is in public domain or not, we have to rely on the negative definition. Three examples are given by us above when a particularwork would not enjoy copyrightprotectionand would, therefore, be attributed as a work in "public domain". It is this yardstick, which has to be applied in the present case.

¶46Section 13 of the Indian Copyright Act provides for the worl<s in which copyrightsubsists. We again repeat that while-deciding the Issue No.l, we have arrived at a finding that in the given work,- the protection under Section 13 of the Act subsists. Section 14 of the Act, thus, confers a right upon the appellant by putting a restrain on word at large not to copy this worl<, otherwisethen under and in accordancewith the provisionsof CopyrightAct or any law for the time being in force. The term of this copyrighthas also not expired under Section 22 of the Act.

¶47The only question, therefore, would be as to whether the -prescriptionof this book by Guru Nanak Dev Universitywould mean that the owner, i.e., the appellant has relinquished its copyrightby dedicatingthe same in public domain. Section 21 of the Act provides for procedurewhich needs to be adopted for such a dedication. It reads as under: "21.Right of author to relinquish copyright;- (1)^ The author of a work may relinquish all or any of the rights comprised in the copyrightin the work by giving notice in the prescribed from to the Registrar of Copyrights and thereupon such rights shall, subject to the provisions of sub-section (3), cease to exist from the date ofthe notice.

(2) On receipt of a notice under sub-section (1), the Registrarof Copyrightsshall cause it to be publishedin the Official Gazette and in such other manner as he may deem fit.

(3) The relinquishmentof all or any of the rights comprised in the copyright in a work shall not affect any rights subsistingin favour of any person on the date of the notice referred to in sub-section

(1)."

¶48The owner of the copyrightcan, thus, relinquish his rights by giving notice in the prescribed form to the Registrar of Copyrights. Now, such notice given by the appellantmanifests its intentionto relinquishIts copyright. It would naturallyfollow that merely because.the book in question prescribed by the ,RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008 Universityfor its students would not mean that the author is snatched of its copyright.

¶49It would be useful to refer to the judgment of the United States Court of Appeals in the case of Lawrence Golan & Ors. ¥s, Alberto. R. Gonzales & Ors, 501 f3d 1179 (2007) wherein copyrightsequences from the stage when the work is created by an author giving him copyrightto the stage when it reaches public domain: "Copyright Sequence Although specific requirements for perfecting a copyright have changed over the years, the process has always begun when an author generates an original expression. The 1909 Copyright Act required an author seeking protection to attach notice to any distributed copies of his or her work. Moreover, the author could not initiate an infringement action or apply for a renewal unless be or she had formally registered the^work with the copyright office. • The 1986 Act removed many of the consequences for failure to register or attach notice, and, in 1989, United States effectively abandoned all formalities as a condition of compliance with Berne Convention. Thus, today, [HN 10] a limited copyright - attaches at the moment a work is created. When copyright expires at the end of the statutory period, the work becomes part of the public domain. Until Section 514, every statutory scheme preserved the same sequence. A work progressed from 1) creation; 2) to copyright; 3) to the public domain. Under Section 514, the copyright sequence no longer necessarily ends with'the public dornain; indeed, it may begin there. Thus, by copyrighting works in the public domain, the URAA has altered the ordinarycopyright. sequence.

¶3An author must still include notice in order to defend against "innocent infringer[s]." GORMAN, supra, ii. Public Domain [HN 11] The significance of the copyright sequence, combined with principle that no individual may copyright a work in the public domain, is that ordinarily works in the public domain stay there. See Country Kids 'N City 5licl<s, Inc. v. Slieen, 77 F.3d 1280, 1287 (10'" Cir. Ci 1996) (holding that a doss design could not be copyrighted because it was characterized by "typical paper doll features found in the public domain");Upton v. Nature Co., 71 F. 3d • 464, 470-(2d dr. 1995) ("Facts are considered to be in the public domain and therefore not protectable under copyrightlaw.,.");Norma Ribbon &Trinnming, Inc. v. Little, 51 F.Sd 45, 48 (5th Cir. 1995) (holding that certain flowers could not be copyrighted "because these same flowers already existed in the public domain"); United States v. • Hamilton, 583, F.2d 448, 450 (9th Cir. 1987) (noting that "a map which represents a new combination of information already in the public domain lacks any element worthy of copyright protection");M.M. Bus Fornns Corp. v. Uarco, Inc., 472 F.2d 1137, 1140 (6th Cir. 1973) (Elementary legal words and phrases are in the public domain and no citizen may gain monopolythereover to the exclusion of their use by other citizens."); Amsterdam v. Triangle Publ'ns, Inc., 189 F.2d 104, 106, (3d Cir. 1951) ("The location of county lines, township lines and municipal, lines is information within the public domain, and is not copyrightable."); Christianson v. West Pub. Co., 149 F.2d 202, 203 (9"' Cir. 1945) ("The outline map of the United States with state boundaries is in public domain is not copyrightable.")(internal quotation marks omitted); Meade V. United States, 27 Fed. Cl. 367, 372 (1992) (holding that "defendant's) LOVE stamp" could not be copyrighted because it :exist[ed] in the public domain"); see also Toro Co. V. R&R Prods. Co., 787 F.2d 1208, 1213 fS"' Cir. 1908) • ("If the disputed work is similar to a pre-existing protected work or one in the public domain, the second work must contain some-variation recognizable as that of the second author.") In Sheldon v'. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 52 (2d Cir. 1936), aff'd, 309 U.S. 390, 392,60 5. Ct. 681, 84 L. Ed. 825 (1940), Judge Learned Hand, luminary in the field of copyright law, illustrated this principle when he stated that "if by some magic a man who had never known it were to compose a new Keats's Ode on a Grecian Urn, he would be an 'author', and, if he copyrighted it, others might not copy that poem, though they-might of course copy Keats." Sheldon, 81 F.2d at 54. As Judge Hand observed, Keats's poems remained in the public domain - free for anyone to copy - even if someone copyrighted the identical language. Section 514 contravenes this principle."

¶50In Rupendra Kashyap Vs. Jiwan Publsshmg House 1996

(38) DRJ 81, a learned SingleJudge of this'Court, after relying upon various judgments held that a question paper set for the purpose of conducting examination of CBSE can form subject RFA (OS) No.21 of 2009^and FAO (OS) No.458 of 2008 matter of copyright. It was also held that as per Section 17 of the Act, first owner of the copyrightwould be the author of the said work, viz., papers setters and merely because the paper was set for the CB5E, the CBSE does not become the owner thereof. Similar view was'expressed by Allahabad High Court in case of 1967 AH 91 holding that copyright of question papers vests in paper setters unless same has been assigned' to Board or Government. To similar effect is the judgment of Patna High Court in the case ofJagdish Prasad Gupta Vs. Parmeshwar Prasad Singh and Ors. AIR 1966 Pat 33. In that case, the Patna High Court stated the same principles noted in the aforesaid judgments and explainingthe manner in which such a copyright in favour of the author can be relinquished under Section 21 of the Act. This is what the Court observed in the said context: ; "9. Section 21(1) of the Copyright Act, 1957, provides that the author of a work.may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed form to the Registrar of Copyrights and thereupon such rights shall, subject to the provisions of Sub-section

(3), cease to exist from the date of the notice. Subsection (2) fays down that on receipt of a notice under Sub-section (1), the Registrar of Copyrights shall cause it to be published in the official Gazette and in such other manner as he may deem fit. It was thus open to the author of a work, and in these cases paper-setters of the question papers, to relinquishtheir copyrights in favour of the Board and the attention of the learned Magistrate has not been drawn to this provision. Section of the Copyright Act, 1957, no doubt deals with ,an assignment of the copyright and the assignment has to be in the manner provided in Section 19, but apart from assignment there Page 40 of S9 could be relinquishmentas provided in Section 21. The question as to whether there was relinquishmentby the' author has to be gone into and it can be preferably enquired into at the time of trial."

¶51Two thingsfollow from the aforesaiddiscussions,viz.,

(i) The appellanthas a copyrightin a work in question also for the reason that the copyright exists even in the question paper set for the examiner, i.e., the Boar^d or the Government.

(ii) Once a work as prescribed from the creation to conferring of copyright in the said author, the period for which such copyright is protected is provided in the statutes and it goes in the public domain only after said period expires. In the context of Indian Copyright Act as per provisions of Section 22, copyright remains for a period of60 years after the death ofthe author.]

¶52Admittedly, second eventuality has not arisen so far and therefore, copyright has not entered the 'public domain'.

¶53When this is the position in law merely because permission is given by the appellant to the University, tacit or otherwise, would not take his work in public domain. First of all, no act on the part of the appellant Is placed or proved or record which would show that the appellant has relinquished its rights. Secondly, the appellant, if at all has allowed Universityto use the work as .a course book for students of. B.A. (English). That RFA (OS) No.21 of2009 and FAO (OS) No.458 of 2008 Page 41 of S9 may not amountto relinquishinghis copyrightin the said work. |t may be relevantfor the purposes of "fair use" and whether this fair use defence is available to the respondents herein or not would be seen at the appropriate stage. Certainly, it cannot; be said that because of that reason, the work'has entered in public domain.

¶54In fact, the, learned counsel for the respondents bolstered his submissions of public domain based on the judgment of Allahabad High Court in the case of Mohamed Abdul JaSsS ¥s. Ram Dayal [A8R 1916 AH 216]. The following discussion by the High Court was made use of by the learned counsel for the respondent: "We think that when the plaintiffas a.member of the Board of Studies, laid the results of his skill and experience before the Board, and then joined with the other members of the Board in preparingthe syllabus for the examinationsto be conducted in the Persian language in the year 1914, he placed the results of his labours unreservedly at the disposal of the universityauthorities.He may have desired that those Authorities should either remunerate him for his labours or take suitable measures to protect the copyright in the selections themselves. But when the University authorities published their syllabus they surrendered any copy right which may or may not have existed owing to the skill, learning, experience and labour expended on the preparation of these lists .of passages from standard authors, unreservedly into the hands of the general public. The avowed intention of the university Authorities was that any enterprisingfirm of publishers which considered it a remunerative speculation should bring out the passages in question in book form. They were of opinion, that the interest of the public, and' of the general body of the student, would best be served by allowing free competition in this matter. We think these facts need only be set forth in order to make it clear that plaintiff retains no copyright in the selections as such." Page 42 of B9

¶55The aforesaid dicta were followed by Jammu & Kashmir High Court in the case of Romesh Chowdhry & Ors. Mahomed Nowshen & Ors, ASH. 1965 Jammu and 101, which reads as under: "7. Apart from this, it seems to us that once the original authors of the books allowed these books to be published by the universityin their syllabus and the university in its turn published these books as part of the syllabus prescribedfor the students,'the matter went into the hans of the public and no copyright in the strict sense of the term remained with the complainant. It was open to any member of the publicto publishe a review, or a criticism or a,guide to these books which having been publishedby the university, became more or less public property. 1 am fortified in my view by a decision of the Allahabad High Court reported in AIR 1916 All 215, Mahomed Abdul Jalis v. Ram Dayal "

¶56No doubt, when a book becomes the part of the syllabus prescribedfor the students, it becomes the subject matter of review or criticism. That may be a case even if a particular book is not prescribed by the University for its students as there can be critique, analysis, review or criticism or any published work. Whether a guide to the said book can be publishedor not and if such guide is to be published,what are the parameters to be followed shall be discussed by us separately. However, what we want to point out that by itself does not bring the work in public domain when we understand the concept of public domain appropriately in the manner discussed by us above. Therefore, these would be of no relevance insofar as defence of public domain is concerned and we are of the view that appellant's copyright work in •RFA (OS) No.21 of 2009 and FAO (05) No.458 of 2008 CP-question was neither relinquished nor, in law, it entered the public domain. FiAR USE DEFENCE: , _ '

¶57The learned Single Judge accepted this defence of 'fair use' in the following words: "15. Section 52'(1)

(h)'also provides that reproduction of even literary work as part of questions to be answered in an examination or in answers to such question shall not constitute infringement of copyright.

¶16In my view, once book of the plaintiffs was prescribed by the university, the questions and answers given in the exercises and key therein, became questions to be answered in an examination fail in Section 52(l)(h) foresaid. They thus, fell in public domain. "

¶58Thus, the learned Single Judge is of the view that since book of the appellant prescribed by the University, the matter would fall in Section 52(l)(h) of the Act as questions answers given in the exercise l<ey in the book became questions and answers in the examination.

¶59Mr. A.S. Chandhiok, learned Senior counsel Mr. Kirpal, Advocate for the appellant questioned the aforesaid conclusion by laying stress on the fact that the so-called use was not by any teacher or pupil in the course of instruction or by students as part of questions to be answered in a examination or by students in answers to questions put to them in the examination therefore, Section

(i)

(h) has no application. They were emphatic in their submission that in the RFA (OS) No.21 of 2009 and FAO (05) No.458 of 2008 C' instant case, tlie worl< was copied by the respondent purely as a commercial exploitation in mind for the purpose of its business, which act was neither protected under Section 52{l)(h). It was simplic.itor business venture, which could not be denied by the respondent as the guides were published with view to sell them -and to earn profits. This commercial exploitation took the matter out of the ambit of 'fair use' contemplated in Section 52 (1) (h) of the Act.

¶60Referring to judgment of Federal. Court of Australia - General Division in the case of De Gans and Another v. Neville Jeffress Pidler Pty Ltd. 18 IT^ 292, he submitted that fair dealing principle would not apply as the material from the appellant's book was used by the respondent not for the purpose of research or study and rather it was a beaten copy for commercial purpose.

¶61We find force in the aforesaid submissions of the appellant hold that Section 52 (i) (h) of the Act would not apply.

¶62Section 52(l)(h), which make following reading: ."Section

¶52Certain acts not to be infringeinnieinit of copyright. - (1)

(h) reproduction of a literary, dramatic, musical or artistic-work-

(i) by a teacher or a pupil in the course of instruction; or

(ii) as part of the questions to be answered in an examination; or

(iii) in answers, to such questions;" RFA (OS) No.21 of 2009 and FAO (05) No.458 of 2008 iv>

¶63It is clear from the reading of the aforesaid provision that this would not come to the aid of the respondents who have publishedthe guide for commercialexploitation. In view ofthe law laid down in various cases, commercial exploitation will take the matter outside the ambit of 'fair use'. The defence of 'fair use' as provided under Section 52(l){h) of the Act is only available to the teacher pupil to reproduce literary work in the course of instructions or examination paper setter to reproduce the literary work as part of the questions or to the pupil to reproduce the literary work as answers to such questions. The respondents are neither teachers nor students nor a person giving or receiving instruction. The defence of 'fair use' under Section 52(l)(h) of the Act only provided to a teacher and pupil and. not otherwise. If this defence is allowed to a publisher, then it would result in a situation where every publisher, without permission from the owner of copyright, would reproduce ad verbatim literary text from the educational textbooks prescribed by the University into their books and exploit the same for commercial gains and benefits and that too without giving any royalty or payment to the right owners towards such reproduction. This practice would obviously-discourage creativity of authors who put their skill, labour, years of knowledge, expertise, etc. into these educational books and-encourage infringers like respondents to reproduce ad verbatim literary, text from RFA (OS) No.21 of2009 and FAO (OS) No.458 of2008 originalpublicationsinto their infringingbooks on the pretextof 'fair use'. Obviously, therefore, Section 52(l)(h) of the Act has no application to the facts of this case.

¶64So far so good. It brings us to the other facet which arises in the context of'Guides'published by the respondents.

¶65Coming to that, we would like to point out. that in the penultimate para, i.e., para 17 of the learned Single Judge has also remarked that the respondents have also compiled their books with sufficient labour it cannot be said that they have merely copied the books of the appellant and are thus, granting the same to the detriment of the appellant. This is what is precisely stated in Para 17, which reads as under; "17. I also find that the books of the defendants won't be a substitute for the book of the plaintiff, for a serious student as is the intent of infringers. The defendants have also compiled their books with sufficient labour. It cannot be said that the defendants, without any effort or input of skill merely copied the books of the plaintiff and marketing the same to the detriment of the plaintiff. "

¶66The aforesaid observations have emboldened the respondents to argue that their work qualified as the original copyright and does not infringe the work of the appellant. Dilating on this submission, it was argued by the learned counsel for the respondents that the use of questions and answers by the respondents is for a different purpose. The appellant admits that the work of the respondents consists of 1875 pages within which they are concerned with 185 pages. The appellant's contention that the "price, purpose, standards of quality, etc." are not the criterions to determine infringement of copyright is RFA (05) No.21 of2009 and FAO (OS) No.458 of 2008 • false and incorrect and such statements 'have been made in total ignorance of settled law on the subject. Though to a •purist or one who delights in intellectualpursuits, such works may be distasteful, even offensive,there is no gainsayingthat they neither pretend to be textbooks, noi" reproduce all that are contained in them. They are designed to cater to a category of students "weak" in their understanding of the subject. To appreciate this argument, we would like to elaborate and focus attention on the nature of Guide Books, in the first instance. iSSOE Mo, 3 - GUIDE BOOKS;

¶67'Guide' as defined in Oxford English Dictionary is "a manual or book of instruction on a specified subject". Webster Dictionary defines a guidebook as "something that offers basic information or instruction". A true nature of guide book is to help, assist, support the students to understand any problem given in a prescribed ' publication. A guide book provides explanation, step by step process for reaching the answer, fine points, detailed analysis of any problem, etc. The guide book is a kind of commentary based on the original work to enable students to give effective answers to questions set in examinations. Such a guide book would be original creation even if it were regarded as part abridgment and part commentary upon the original work. In EM. Forster & Ors. Vs. Parasuram [AIR 1964 331], it has been laid down that the guide book was a kind of commentary based upon the original work to enable students to give effective answers to questionsset in examinations. In Kelly Vs. Morris [1S66 LR 1 Eg. 697], which is also referred to with approval by the Supreme Court in Eastern Book Company (supra), it was laid down that compiler of a directory or guidebook, containing information derived from sources common to all, which must of necessity be identical, in all cases if correctly given, is not entitled to spare himself the labour and expense of original inquiry by adopting and republishing the information contained in previous work on the same subject. in V. Ramaiah Vs. K.' Lakshmanaiah [1989 PTC 137], defendant published "Sri Vidya Excellent Guide: for the BA, B.Com. and B.Sc. students with respect to Telugu textbooks "Girija Kalyanam". The learned Single Judge of the Andhra Pradesh High Court held as follows: "4. The question, therefore, is whether the act of the respondent in writing the guide is an infringement of the copyright of Girija Kalyanam

¶6In this case the Court below considered in extenso the question at issue. I have gone through the guide-consisting of three portions. The first portion gives meaning to difficult words in the book written by the author Ramakrishnaiah; second portion consists of annotations, illustrations of meanings circumstances under which the theme has been used. The third part consists .of four probable questions and answers that may be likely to be prescribed by the examiner from the topic Girija Kalyanam. .Merely because the author of the guide, viz., the respondent used the language couched in the text-book his conduct does not necessarily mean that he pirated the words. It is only a guide and was written to help the students to understand the meaning, significance and answers that have to be RFA (OS) No.21 of2009 and FAO (OS) No.458 of2008 ' "Page 49 of89 % s written for the questions tlierein or the answers to be given to the words used by the author

¶7I do not find any justification to. hold that the respondent-defendant pirated the language used or the subject used ad nauseam. so 'as to come within hieaning "infringement".... ""

¶68In Nag Book House Vs. State of West Bengal & Ors, [AIR 1982 Cal. 245, the West Bengal Board of Secondary Education issued guidelines for authors of textbooks on Mathematics containing instructions regarding syllabus for Class 6 and students. Textbooks were prepared as per the syllabus. The question was as to whether the Board could stop other private publishers' textbooks from being printed for other syllabus and it was held that the Board cannot claim any such monopoly on the syllabus or guidelines.

¶69In West PubSishmg Co. Vs. Mead Data Central [1986 OS App.,LexBS 29211], the United States Court of Appeals for the 8''^ Circle has held that an author's rights in a copyrighted work protect, author not only against infringing works less expensive than original, but against more expensive infringement as well.,

¶70Textbooks/guidebooks, by their very nature,-are "derivative works" and the standard to protect derivative works has been laid down authoritatively by the Supreme Court in Eastern Book Company (supra). The Apex Court in Paras 37, 38 & 39 has laid down the test of originality in a derivative work is .RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008 . higher than the "sweat of the brow", principle in the following words: "37. In Kelly v. Morris,

(1856) LR 1 Eq. 697, School of thought propounded is that, at least in respect of compilations, only time expenses are necessary which is I!industrious collection. The plaintiff was owner publisher of the first directory. The defendant came out with another directory. The plaintiff sought an injunction against the defendant to restrain the publication of the defendant!s directory on the' allegations that defendant was guilty of appropriating the information contained in the plaintiffis directory obtained benefit of many years of incessant labour expense. The defendant, on other hand, contended that there had been no unfair or improper use of the plaintiffis work. Information which was given in the plaintiffis directory was entitled to be used and adopted as long as he did not servilely copy it. The defendant had bestowed his independent time, labour and expense on the matter and thus had in no way infringed the copyright of the plaintiff. Granting injunction, the Court held that in the case of a directory when there are certain common objects of information which must, if described correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself that which the first compiler has done. In case of a road-book, he must count the milestones for himself. In the case of a map of a newly discovered island he must go through the whole process of triangulation just as if he had never seen any former map, and, generally he is not entitled to take one word of the information previously published without independently working out the.matter for himself, so as to arrive at the same result from same common sources of information, and the only use-that he can legitimately make of a previous publication is to verify his own calculations and results when obtained. The compiler of a directory or guidebook, containing information derived from sources common to all, which must of necessity be identical in all cases if-correctly given, is not entitled to spare himself labour expense of original inquiry by adopting and re-publishing the information contained in previous works on the same subject. .

¶38In the case of Parry v. Moring and Gollancz, Cop Cas (1901-1904) 49, the plaintiff, after obtaining permission from the representatives of the owner of certain letters, updated, chronologically arranged translated them into modern English for their inclusion in his book. Later, the defendant published, as one of the series, an edition of the letters prepared by the plaintiff. The plaintiff, therefore, brought an action against defendant alleging infringement' of. his copyright. The plaintiff •^4 maintained his copyright in his version of the text apart from the copyright in the text. It was held that there is copyright in the worl< of editing text of a non-copyright work. The editor of a non-copyright work is not entitled to take the text from the edition of a rival editor and use it as a copy for the purpose of his own work.

¶39In Gopal Das v. Jagannath Prasad and Another, AIR 1938 All. 266, plaintiffs were printers ' and publishers of the books. The book titled llSachitra Bara Kok Shastrall was printed for the first time in 1928 and had run into four editions since. The defendants printed published another book titled llAsli Sachitra Kok Shastra^ in 1930. The plaintiffsl case was "that the book published by the defendants was a colorable imitation of their book and an infringement of plaintiffsl copyright. It was held by the Court that the plaintiffs compiled their book with considerable labour from various sources digested and arranged the matter taken by them from other authors. The defendant instead of taking the pains of searching into all the common sources and obtaining his subject matter from them, obtained the subject matter from the plaintiffsl book and availed himself of the labour of the plaintiffs adopted their arrangement subject matter and, thus, such a use of plaintiffsl book could not be regarded as legitimate. It was held that a person whose work is protected by copyright, if he has collected the material with considerable labour, compiled from various sources of work in itself not original, but which he has digested and arranged, the defendant could not be permitted to compile his work of like description, instead of taking pains of searching into all the common sources and obtaining the subject-matter from them and to adopt his arrangement with a slight degree of colourable variation thereby saving pains and labour which the plaintiff has employed. The act of the defendant would be illegitimate use. The Court held that no one is entitled to avail himself of the previous labour of another' for the purpose of conveying to the public the same information, although he may append additional information to that already published." 71, -Here in this context, we have to examine whether publication of such a guidebook amounts to 'fair use', internationally, concept of fair use in derivative works has been considered in a large number of cases including the Google case, Perfect 10, Inc. Vs. Amazon.com Inc. [508 F.3d 1146-]. The use by-Google of various keywords and thumbnails were held to be non-infringing and the US Court of Appeal of the 9"' Circuit held as follows:- " A work is "transformative" when the new work does not "merely supersede objectives of the original creation" but rather "adds something new, with a further purpose or different character, altering the first with new . expression, meaning, or message As noted in Campbell, a "transformative work" is one that alters the original work "with new expression, meaning, or message " We conclude that the significantly transformative natue of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial usages of the thumbnails in this case. In reaching this conclusion, we note the importance of analyzing fair use flexibly in light of new circumstances.' Sony, 464 U.S. at 431-32, 104 S.Ct. 774; id. At 448 n.-31, 104 S. Ct. 774 (Section 107) endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change." (quoting H.R. Rep. No.94-1476, p. 65-66 (1976), U.S. Code Cong. & Admin. News 1976, p.5680). We are also mindful of the Supreme Court's direction that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use "

¶72In Hubbard & Others (supra), the Court laid down certain yardsticks to measure "fair dealing" in the following manner: "It is impossible to define what is 'fair dealing". It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, they may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But,, short extract long comments may be fair. Other considerations .may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. Page 53 of

¶73We may also usefully refer to the .following passage from the judgmentof the Supreme Court of United States in the case of . Luther R. Campbellaka Skyywalker,'et aL Vs. Acuff-Rose Music, Inc. 510 US 563 (1994): "The first factor in a fair use enquiry is "the purpose and character of the use, including whether such use is of a commercialnature or is for nonprofiteducationalpurposes. This factor draws on JusticeStory'sformulation,"the nature and objects of the selections made". Folsom v. Marsh supra. The enquiry here may be guided by the examples given in the preamble to section 107, looking to whether the use is for criticism,orcomment,or news reporting,and the lil<e, see section 107. The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely "supersede[s]the objects" of the original creation, Folsom.v. Marsh; accord, Harper & Row, supra ( supplanting" the original), or instead adds something new with a further purpose or diffent character, altering thefirst with new expression,meaning,or message;it asks m other words, whether and to what extent the new work is "transformative." Leval 1111. Although such transformativeuse is not absolutelynecessaryfor a finding of fair use,,5ony, supra, the goal of copyright, to promote science and the arts, is generallyfurthered by the creation of transformativeworks. Such works thus lie at the heat of the fair use doctrine'sguaranteeof breathingspace within the confinesof copyright;see, e.g., Sony, supra, at 478-480 (BLACKMUN, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

¶74The breadth of the fair use doctrine use was put to test in Harper&Row Vs. Nation Enterprises471 US 539 (1985) where the Court noted that there are four factors relevant in determining whether the use was fair: (1) the purpose and characterof the use; (2) the natureof the copyrightedwork; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008 , market for or value of the copyrighted work and proceeded to test the facts on each of these grounds.

¶75The contours of the fair use standard shifted somewhat with the decision in Campbell! Vs, Accisff-Rose Mus'sc (supra). The Supreme Court unanimously upheld claim of the defendants in the abovementioned case that their parody to the plaintiff's song "Oh, Pretty Woman" was-covered by the fair use exception. It was uncontested that the defendant's song amounted to infringement but for the "fair use" exception. The Court held that all the traditional four factors employed to reach a conclusion of fair use are to be treated together, no in isolating and no undue preference can be given to anyone of them. In relation to the first factor, it was held that Court must look into the nature of the use, i.e., whether it was for educational purposes or for review or criticism. The central enquiry was to see if the work merely supersedes supplants the original work or instead adds 'something new, with a further purpose or different character, altering the first with new expression, meaning, or message; in other words, whether and to what extent the new work is 'transformative'. Transformative works, the Court held, have a greater change of falling within the fair use defence and such 'works thus lie at heart of the fair use doctrine's guarantee of breathing space within confines of copyright. If one may put it differently, the question to be addressed would be, is there a value addition, wliicti aiters tiie original worl< in a significant • measure. The second factor which evaluates the -nature of copyrighted work, is intended to find out if the worl< actually merits copyright, i.e., whether copyright law was intended, at its core, to cover such works. However, the Court cautioned that this factor is not likely .'to help much in separating the fair use sheep from infringing goats', in cases where the subsequent work is transformative. The tlhBrd factor, which deals with the extent of copying, the 'Court explained, citing Sony Corp. of America (supra) that it does not entail that reproduction of the entire work would militate against the finding of fair use. There could be cases where the copying could be substantial and the Courts observe fair use, at the same item there could be cases where copying through insubstantial could be held as infringement. Lastly, the Court observed that in the fourth factor, the Courts have to "consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted widespread conduct of sort engaged in by the defendant would result in a substantially adverse impact on the-potential market".

¶76It follows from the above discussion that when a published work is prescribed as text book, a 'guide' can be published provided it fulfils the test f a 'derivative work'. At the same time, this guide book has to be materially different from the textbook. Guide bool< siiould not be verbatim reproduction of tiie text bool<. if a guide bool< reproduces tiie original work to a great measure without its contribution, it may amount to plagiarism may infringe the copyright iaw of the person in original work. On the other hand, if guide book written in a different . format, albeit, dealing with subject matter which is contained in the original book, with a purpose to help, assist and support the students, the problems given in the text book, then it would be a work different from the original' work. The guiding principle is to see as to whether such guide book provides explanation and/or step by step process for reaching the answer, detailed analysis of any problem with the objective of making task simpler in understanding subject provided in the textbook. In writing this guide book, if the contribution of aforesaid nature is made, it may be treated as a work which is somewhat different in nature. This is the crucial test which is to be applied and has been characterized as the transformative character of the use by the American Courts. Therefore, the task would be to ascertain as to whether purpose served by the guide book is substantially different from the purpose served by the textbook. If the guide book is different in character and not a mere substitute of the original work/textbook, it would be treated as transformative. However, character must be substantially different it is not sufficient that superficial changes are made with basic character of the textbook creeping in the guide book. In that eventuality, it would not qualify as a work of transformative character. If this directive work in the guidebook has assumed different character, it would not amount to infringement of the original worl<, though it would have been, drawn, to certain extent,, from the original work. And, in that sense, it would amount to 'fair use' as described in

¶77Interestingly, counsel for both the parties were ad idem on the aforesaid narration about doctrine of fair use judgments cited above were referred to by both the parties. Its application on this principle on the facts of the present case where the perception of the two sides differ and we have to ascertain as to who is correct.

¶78Keeping in view the aforesaid parameters, we may discuss the work of the respondents in the form of guidebook produced by them. We repeat that while looking into this aspect, we keep in mind that the guide book, by its very nature, "derivative work" and it would qualify for protection if this work meets the test laid down by the Supreme Court in Eastern Book Company (supra) as well as in other cases taken note of above. On that basis, it is to be found as to whether work of respondents is "transformative" in nature and add something new, with a further purpose or different character, altering the first work of the appellants. .RFA (OS) No.21 of 2009 and FAO (OS) No,458 of 2008

¶79The guidebook of the respondents is not confined to Grahnmar (which is the sole subject matter of the appellant's book), but also includes English literature, novel, poem, comprehension and letter writing as well. The respondent's guidebook is in three volumes, which is priced at ?600 as against the textbook of the appellant with a price tag of ?95/-. Though this price is alone is not a determinative factor, what we emphasize is that the aim of producing guidebook is altogether different. It has dealt with various aspects. Further even in respect of the Grammar portion, respondents have given their own introduction to. some of the Units.

¶80The respondents have specifically omitted questions which though have been included by the appellant which evidences an effort to select only those portions which were essential as a study material for the students and that may be most likely to be prescribed by the examiner from the prescribed course book "Advanced Grammar in Use by Martin Hewings".

¶81Moreover, taking the two works together and considering them as a whole, there is no infringement of the copyright. The purchasers, whether of the original work or of the guide, are most unlikely to be illiterate, or unacquainted with English. It would be perfectly clear to a student or any customer that they were acquiring for. themselves not the "original work" i.e. ' "Advanced Grammar in Use by Martin Hewings", but a "guide" for students, which is the publication of the respondents. The above can also be conclusively established by the fact that the titles of the two works are completely different. The guide of the respondents is in the form of a review of the original work, designed to enable the University students to give effective answers to questions that nnay be set in the University Examination.

¶82The pattern of use of the two books is different and while the appellants' book is meant for a'student to educate himself and understand the nuances of English Grammar first by reading the text on the left hand page and then practice with exercise on the right hand page, the respondents have given only the exercises along with answers. One the exercises are given in a text book prescribed by the University, the same could not be changed by the respondent. Had the intent of the respondents been to merely copy the book of the appellant, the respondents would have also copied the theoretical portion on the left hand page and the appendices and additional exercises also in the appellant's book. The respondents only wanted to provide to the students one singe book of cracking English paper instead of separate books for text, poetry, essay writing, . grammar, etc.

¶83Each volume of the respondents' book deals, besides with grammar, also with the texts prescribed for each year, English prose, comprehensions, poem, paragraph writing, plays, essay writing, etc. The said books are structured on the pattern of RFA (OS) No.21 of 2009 and FAO (05) No,458 of 2008 Page 60 of89 question paper of English for each year. The books, at the beginning, contain syllabus for each year and also contain translation from English to Hindi Punjabi. Before reproducing some of the exercises, the respondents have given their own introduction to the units. The respondents have given the same answers, as in the l<ey at the end of appellant's books, at the end of each exercise itself.

¶84We are of the opinion that learned Single Judge has correctly concluded that the pattern of use of the two books is different and while the appellant's book is meant for a student to educate himself and understand the nuances of the English grammar first by reading the text on the left hand page and then practice with exercise on right hand page,^ the respondents have given only the exercise along with answers. Once the exercises are given in a text book prescribed by the university, the same could not be changed by the respondent. Had the Intent of the respondents been to merely copy the book of the appellant, the respondents would have also copied theoretical portion on left hand page appendices additional exercises also in the, appellants' book. The respondents only wanted to provide to the student one single book for cracking English paper instead of separate books for text, poetry, essay writing, grammar, etc. The respondents in the grammar section of such book have to Page 61 of naturally give tlie same exercise as prescribed by tine universityand cannot be expected to give a different exercise.

¶85Thus, ivir. Dubey is right in his, submission that the intention of the respondents in authoring and publishing these notes was to merely provide a guide to the students to understand the bool<s prescribed by the University.,Furthermore, there is no attempt on the part of the respondents to represent to the public that • any portion of the appellant's book is a work of the respondent. The above submission is further established by the fact that the' respondents have only incorporated that portion of the appellants' work, which has been prescribed by the University in their syllabus, and have .left out those portions, which constitute what can be termed as "purple patches" of the original work. ,86. Such a use of an original work by a person thereby creating another work of distinctive character would be protected as held in the following cases:

(i) In the case of V. Rsimacah ¥s. K. Lakshma'mh, 1989 pre 137

(AP), it was observed that mere use of lang'uage couched in the text book does not necessarily lead to piracy/infringement of the work particularly when the guide was written to help the students to understand meaning, significance answers that have to be written for the questions and there was further an RFA (05) No,21 of 2009 and FAO (OS) No.458 of 2008 acknowledgement to the authorship of the text book.

(ii) Similarly, in the case of EM, Forster & Am. Vs. A.M. Parasuram ASR 1954 Mad, 331, the Court observed that purchasers, whether of the original work or of the guide, were most unlikely to the illiterate or unacquainted with English and it would be perfectly clear to them from the words enclosed in brackets as a sub-title that they were acquiring, not the original work but "guide for University students".

(ill) . In CMl Chandran Vs. Ammm'i Amma 1996 (16) PTC 670 in which the Court relying upon the cases of Hubbard & Others Vs. 'Vosper KG Anand (1972) 2QB 84 held that when the alleged infringing work is not a market competitor to the subject work, and the former itself constituted a literary work with some amount of originality, it would constitute fair dealing.

¶87Coupled with these aspects, when we keep in mind that the book of the appellant is a prescribed textbook for the University and on the one hand, and respondents wanted to bring out an all-comprehensive guidebook for the help of the students in all the courses of English and not limiting it to Grammar alone, the purpose of this guidebook produced by the respondents would RFA (OS) No,21 of 2009 and FAO (05) l\lo.458 of 2008 be materiallydifferentand it would satisfythe guiding test laid down by the Supreme Court in Eastern Book.

¶88In the ultimate analysis, since Issue No.3 as framed in the Suit is to be decided in favour of the defendants/respondents against the plaintiff/appellant,the Suit fails. Thus, we are of the view that it was rightly dismissed by the learned Single . Judge by affirming the said decree/judgment.

¶89This appeal is accordingly dismissed. FAQ (OS) Mo.458 of 2008

¶90This appeal is preferred by the appellant/plaintiff against the interim order dated 17.09.2008 passed by the learned Single Judge' whereby ex parte injunction granted in favour of the appellant vide orders dated 05.12.2005 has been vacated. As is clear from the Cause Title itself, the appellant is trading as Oxford University Press (hereinafter referred to as 'the Press'), which was established in 15"^ Century by the University of Oxford' has innumerable publications with worldwide circulation. It is inter alia claimed that the Press has become household name through a diverse publishing programme that includes scholarly works in all academic disciplines. Bibles, music, school college textbooks, children's books, materials for teaching English as a foreign language, business books, dictionaries, reference books, journals electronic I^FA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008 publishing. It is also claimed that it has developed substantial reputation and goodwill not only in England,but also in all parts of world including , India where it first set up its establishment in the year 1912 in Bombay (now Mumbai). Led by a team of highly qualified and committed editorial, market research, design and production professions, the Educational Division of Oxford University Press, India offers a wide range of books/resources from Kindergarten through to grade twelve in various disciples, such as English language, Science, Mathematics, Environmental Studies, Social Sciences, General Knowledge, Computer Education, Value Education, Humanities, • Economics, Art and Craft. The complete range of books prescribed by various School Education Boards such as CBSE, ICSE other State Boards is an added feather to appePlant's growing list of titled. The present case concerns one such Mathematics book prescribed by the Jammu Kashmir State Board of Education for Class XI. It is governed by stringent quality parameters for which the appellant is well-known all over the world. The Press textbooks are published and revised after a thorough survey of the marl<et for current syllabus, trends and curriculum changes in various disciplines as per the guidelines prescribed by the various examination bodies, such as the CBSE, ICSE and various State Boards. This is done to ensure conformation both to the requirements of the various examining bodies and to the changing times. This is RFA' (05) No.21 of 2009 and FAO (05) No.458 of 2008. Page 65 of 89 ' q6 achieved, inter alia, by tapping the modifications required in the existing-courses and gathering first-hand feedbacl< on the existing courses from teachers, educators and decision mal<ers. The bool<s of the appellant/Press not only incorporate reflect the latest teaching methodologies on the basis of the inputs of teachers, but also ensure effective classroom application, inasmuch as it takes into account the views of both teachers and need of the students. It may be worth mentioning Press brings authors teachers together to share theories and ideas and to give sound advice based on a real understanding of teaching needs helps create better textbooks by a combined and concerted effort of all.

¶91In the present case, we are concerned with two books of the appellant titled "Oxford Mathematics Part A" and "Oxford Mathematics Part B" (hereinafter referred to as 'the subject works'). These textbooks meant for the students of Class XI following the course structure prescribed by the Jammu & Kashmir State Board of School Education.

¶92According to the appellant, the subject works have been •published by the appellant in and after consultations and discussions with experts and in cooperation with the Jammu & Kashmir State Board of Schools Education and their approval. The appellant and the Jammu &KashmirState Board of School Education entered into an agreement dated 26.08.2003 for the purpose of publicationof the subject works for the students of RFA (OS) No.21 of 2009 and FAO (05) No.458 of 2008 a\ \ \ Jarnmu & Kashmir,State Board of School Education. The copyright of the subject works vests in the appellant. The subject works are specially adapted editions of the CB5E Mathematics XI Part A and Part B authored by Dr. A.K. Roy, of which the copyright vests in the appellant vide agreement dated. 10.09.2003. The author of the subject works, Dr. A.K. Roy was the Head of the Department of Mathematicsat Biria HigherSecondarySchool, Kolkata. He is a very well-l<nownand respected figure among mathematicians and mathematics teachers in India. He has employed' great efforts, research, ingenuity, time, expression and investment in shaping and. designingthe subject works so that they become effectivetools for self study; efficient and useful, for the students pursuing • advance study understanding of Mathematics. , The scheme and order of chapters, scheme and order of exercise and the scheme and order of problems within those exercises along with their answers in the subject works are'unique to the appellant and are a result of years of research, classroom teaching, concerted intellectual effort put together by authors, publishersand teachers, hard work, practice and the standard followed by.esteemed institutions all over the world. The units in any given chapter have been so arranged so that each unit becomes integral and complimentary to each other. The subject works are dynamic books which have made the learning of mathematics by students much niore RFA (OS) No.21 of 200? and FAO (OS) No.458 of 2008 systematic and at the same time much more fun and pleasurable. The subject works are authoritative with integrated syllabus and motivating topics, focused tasks combines with real understanding of what works in the classroom. They make for effective teaching and effective learning. The contents of the subject' works have been compiled in order to suit the specific needs and requirements, selection of particular, class of users, involving application of substantial skill, judgment, labour investment f time and money. The units are streamlined for faster progress. The text of the books is upto date with global •appeals. The subject works have maximum clarity with fresh modern designs. The subject works instill logical methodical thinking and develop problem-solving skills through a set of graded solved problems. The key features of the books are that they have been designed to enable the learner to develop a thorough understanding of basic mathematical principles and processes. The concepts in the book move, in the opinion of the author from simper ones to more difficultand complex ones, thus making a learning curve which is perfect in the opinion of the author. It is noteworthy that in the arrangement of the chapters, exercises and problems in the-subject works, the author has exercised his judgment and skill, introduction to each chapter reviews the concepts learnt earlier.. Graded solved examples develop problem-solving RFA (05) No.21 of 2009 and FAO (05) No.458 of 2008 • techniques. Short exercise drills interspersed within a chapter after each major topic. Miscellaneous exercises have been provided at the end f each chapter. Even Model Test papers have been provided at the end of the books to provide the students a feel of the examination. Excellent layout and design make the books visually attractive and increase readability. The books qualify for copyright protection as original literary works within the meaning of the Copyright Act, 1957.

¶93The grievance of the appellant is that knowing the importance and imperative need of the subject works to the students in Jammu & Kashmir and knowing that a copy of the prescribed book would sell well in the market, the respondents have in complete violation of the appellant's copyright in. the subject works in with a view to make substantial illegal unearned profits, conspired and published "Teach Yourself Mathematics (Fully Solved) Part A" "Teach Yourself Mathematics (Fully Solved) Part B",(hereinafter referred to as 'the infringing books'), the contents of which the defendants have brazenly copied, reproduced and incorporated from the-subject works. The infringing books copies in toto the exercises given in the subject works. The infringing worl<s contain only those exercises problems which are contained in the subject works and have been copiously copied therefrom. Neither, do they bring any new problems/exercises in the infringing works, nor do they take the minimal effort of making ai, ostensible clianges in ttie order/arrangement of tiiose problems and exercises. It may be relevant to mention at this stage that the arrangement of pre-available text is a subject matter of copyright even on the very high touchstone of the modicum of creativity.

¶94As per the appellants, they have tended, to give extreme importance to' the exercises at end of each chapter mentioning that Mathematics is s discipline where exercises assume much greater significance than the theory they are based on. Once.a theorem is explained, the many facets and methods by which the same can be applied-is fundamental to a bool< of mathematical exercises. It may not be wrong to state that exercises are the operative parts of a mathematics book. On this basis, it is the case of the appellant that by copying various exercises of the works in the appellants' book by the respondent No.l in its aforesaid two books (hereinafter referred to as 'the guide books'), they have infringed the copyri.ght of the appellant in the subject books.

¶95Laying this foundation, the appellants served legal notice dated

05.11.2005 upon respondents calling upon them to immediately cease and -desist from publish, reproducing, storing in retrieval system or transmitting in any manner the subject works or any part thereof and/or offering for sale, advertising, and distributing the books under the title "Teach Yourself Mathematics (Fully Solved) Part A". The respondents RFA (OS) No.21 of2009 and FAO (05) No,458 of2008 \ \ were also called upon, to render true and correct account of profits made by them by selling the guide book. According to the appellant at that time, the appellant was not aware of Part B of the book published by the respondents as well and on coming to know of the same, another notice dated 10.12.2005 was sent to the respondents in respect of that book as well.

¶96The respondents refused to accede to the demand of the appellants and refuted the claim of the appellant vide reply dated 28.11.2005. In these circumstances, the appellant filed CS

(OS) No.1658 • of 2005 seeking decree or permanent injunction, decree for delivery of ail the infringing books lying in stock with the respondents and decree for rendition of accounts of profit along with costs. This Suit was accompanied by application under Order XXXIX Rules & 2 -and another application under Oder XXVI Rule 9 read with Order XXXIX Rule 9 and Section 151 of the Code of Civil Procedure, 1908 seeking ex parte injunction as well as appointment of • Local Commissioner,

¶97The learned Single Judge of this Court vide order dated

05.12.2005 ordered that the plaint be registered and summons be issued to the defendants therein. The learned Single Judge on a perusal of the two books (being the subject works therein and the infringing work therein) came to the conclusion that the questions and their answers are the exact replica of the appellants' book and hence granted an interim injunction. The Q learned Single Judge was further pleased to inter alia appoint a Local Commissioner to visit the premises of respondents tal<e inventories of the infringing works and taken into custody all such •infringing works. The respondents filed their written statements on 02.01.2006 contending, inter alia, that there was nothing unique in the subject worl<s and that the use of the subject works by the respondents amounted to fair use. .The respondents also filed an application under Order XXXIX Rule 4 for vacation of the injunctions granted by the learned Single Judge vide order dated 05.12.2005. The appellant filed its reply to the applicant under Order XXXIX Rule 4 on 17.01.2006.

¶98The plaint was, thereafter, amended to incorporate relief in respect of Part B which according to the appellant, it came to know on the visit of the Local Commissioner. The amendment was allowed.

¶99After completion of pleadings, arguments were heard on the application for interim injunction on which ex parte injunction was granted which led to passing the orders dated 17.09.2008, vacating interim injunction granted earlier vide orders dated 05.12.2005. The learned Single Judge came to a prima facie conclusion that the subject worl<s do not conform to the minimum degree of creativity mandated by Indian law. The • learned Single Judge was further pleased to hold that the' 'learning curve' 'learning content' in scheme of arrangements in the subject works is negated by the fact that the syllabus has been prescribed by the Board. It has been further observed that the step-by-step manner of solving the problems given in the appellants' works, which is not available in the said subject works, has been given in the respondents' works. It was further held that the revisiting of the questions and assisting the students to^solve them amounted to review, which is fair use. of subject works. The Tenor of the Impugned Order; 100'. Perusal of the impugned order of the learned Single Judge reveals that the. main case set up by the plaintiff was that it enjoyed copyright in the subject works, which was a result of years of research, hard work, practice and standard followed by the reputed institutions the world over. The contents of the textbooks involves of substantial skill, judgment, labour investment of time money. The author. Dr. Roy had specifically assigned the copyright in favour of the appellants therefore, all rights in the subject works rested in the appellant. It was further pleaded that the guide books of the respondent had brazenly violated plaintiff's copyright, reproduced contents of the plaintiff's books, which had immensely hampered not only the sale of the.plaintiff's subject work but has also gravely prejudiced interest of the students at large. Specific allegation that defendant/respondent reproduced exercises their c ?- solutions/answers from the subject work and thus made their infringing pubiication a poor and degrading substitute to the plaintiff'ssubjectwork. It was pointed out that there was word to work copying of the questions in the text books. The questions, their arrangement and the sequencing, in the defendants' guides are identical to the plaintiff's textbooks. According to the appellants, these questions form a valuable and central part of the work, and their substantial copying by the defendants amounts to violation of the plaintiff's copyright.

¶101The defence of the respondents was that their guide books amounted to 'fair use'. .Preparation of a guide book, which independently contains the working of every mathematical problem and steps for solving them, cannot be termed as infringement of the textbook. The respondents pleaded that the appellants' book does not have any step-by-step working for the various sums at the end of each chapter respondents have not copied the contents of each lesson or chapter whereas the respondents' publication was guide books, the appellants' publications are textbooks and these guide books were independent creation by Prof. Harish Sharma who is a well-known Mathematics teacher. It was also pleaded by the respondent that even the appellants' books contained at least 101 questions, which were questions which were copied or reproduced from the work of another well-known author, Mr. RFA (OS) No.21 of 2009 and FAO (OS) No.458 of2008, R.D. Sharma therefore, the appellant should not claim copyright in those questions/exercises,

¶102The learned Single Judge proceeded with the matter on the premise that the outcome of the case depended upon the two issues, which were to be gone into, viz:

(i) Whether that part of the work of the plaintiff (questions/exercises), which the defendants had reproduced, , prima facie, merits copyright protection?

(ii) If it does, have the defendants sufficiently made out a 'fair dealing' or a 'fair use' defence at this stage?

¶103While answering the first question, the learned Single Judge expanded the "the Idea-Expression Dichotomy and the Doctrine of Merger" and noted that there is no copyright protection on ideas and facts and it is only the creative expression of such ideas facts that is rewarded by law. In the process, expression "originality" in artistic, literary, dramatic musical works were also explained holding that with passage of time, doctrine of "sweat of the brow" had given way to the "modicum of creativity" and therefore, in order to-have a copyright in a work, it was necessary to show that it involves a certain degree of creativity. ^06 The learned Single Judge also deemed it proper to refer to the "doctrine of merger", peculiar to copyright law in the following manner: "18. An aspect peculiar to copyright law, is the doctrine of merger,' is involved in this case. This doctrine posits that where the idea and expression are intrinsically connected, and that the expression is indistinguishable from the idea, copyright protection cannot be granted. Applying this doctrine courts have refused to protect the expression of an idea that can be expressed only one manner, or in a very restricted manner, because doing so would confer monopoly-on idea itself. The decision in Herbert Rosenthal Jewelry Corporation y. Kalpakian, F.2d 738(1971) is illustrative in this regard. In that case plaintiffs sued the defendants asking them to refrain from manufacturing bee shaped jewel pins. The Court held that . the jewel shaped bee pin was-a an idea that anyone was free to copy, the expression of which could-be possible only in a few ways, therefore, no copyright could subsist in it."

¶104On the application of the aforesaid doctrines, the learned Single Judge opined that the test of creativity in the worl< of appellant had not been satisfied no copyright couid be claimed therein, as is clear from following discussion in impugned order: ' "20. In the present case, plaintiff's claim concerns mathematical questions and answers. Besides asserting work put in by Dr. Roy, and the effort in arranging such questions-at appropriate stages, chapters or units in the textbooks, plaintiff do not show how such effort is original to conform to the minimum degree of creativity mandated by Indian law, post Eastern Book Company (supra). Mathematical questions are expression of laws of nature. The —discoveryll of such laws cannot confer monopoly to those who describe it. The reason is that language is a limited medium, which enables description of such laws of nature - in only a few ways. Recognition of copyright as inhering in the questions themselves (as the plaintiff suggest the court to do), without existence of the —creativell element of originality would deny, access to ideas, thus robbing one of primary objectives of copyright law (promotion of creativity) of vitality, thereby stifling intellectual growth, interestingly, section 3 (k) of ( :/ the Patents Act, 1970 explicitly denies any form of patent protection to a mathematical method or algorithms. Prima facie, Parliament could not have intended that innovations such as new mathematical, questions, denied benefit of patent protection—which if granted is of restricted duration—could be refused, but a wider protection in time, by way of copyright, could have been granted.

¶21As far as the sequencing and schematic arrangement of the questions - in the various chapters is concerned - the plaintiff say that textbook conforms, to specifications and requirements of the KBoard. Here, the plaintiffs had to show original effort, unique to their schematic arrangement or sequencing, in education, dictates of the —learning contentll are such that each level demands a —curvell. These —learning contentll —learning curvell elements are inherent in the syllabi evolved by examination bodies such as J & K Board or the CB5E. The plaintiff therefore, had to show how it evolved an arrangement'so unique that scheme is entitled to copyright protection, independent of the dictates of the Board. The involvement of the Board, in the creation of the syllabus, negates such originality. This is not to suggest that there can be no creativity such schematic arrangement; the court merely infers that prima facie there is no material in support of it; the plaintiff have made no attempt to show this creativity, apart from placing textbooks on the record. For those reasons, this court prima facie is of the opinion that the plaintiffs' claim of copyright in questions, answers, and their requiring or arrangement, is insubstantial."

¶105Adverting to the issue of the 'fair use' defence, the learned Single Judge referred to Clauses (a) and (h) of Section 52 of the Copyright Act and on the interpretation thereof, relying upon few judgments of the Courts in United States with more emphasis on the decision in the case of Lather K, Campbell aka Skyywalker, et aL Vs. Acuff-Rose Music, Imc, (supra) and some judgments of English Courts as well as Indian Court, law on 'fair use' doctrine has been summed up by the learned Single Judge in the following manner: RFA (OS) No.21 of2009 and FAO (OS) No.458'of2008 'Page 77 of89 "32. Copyright law is premised on the promotion of creativitythrough sufficientprotection.On the other hand, various exemptions and doctrines in copyright law, whether statutorily embedded or judiciallyinnovated, recognizethe equally compelling need to promote creative activity and ensure that the privileges granted by copyright do not stifle dissemination of information. Two doctrines that could be immediately, be summoned are idea-expression dichotomy and the doctrine of —fair usell or fair dealing. Public interest in the free flow of information is ensured through the idea-expression dichotomy, which ensures that no copyright is granted in ideas, facts or information. This creates a public pool of information and idea from which everyone can draw. At the same time, as Judge Leval observes, all creativity is in part derivative, in that, no creativity .is completely original; —each advance stands on building blocks fashioned by prior thinkersll (Bernard Shaw expressed it by saying that Shakespeare was a —tall manll, but he

(Shaw) was taller -as he stood Shakespeare's shoulders). Judge Leval further observed that most Important areas of intellectual creativity like philosophy, literature sciences are referential, require continuous reexamination of existing theses.

¶33The doctrine-of . fair use then, legitimizes reproduction of a copyrightable work. Coupled with a limited copyright term, it guarantees not only a public pool of ideas and information, but also a vibrant public domain in expression, from which an individual can draw as well as replenish. Fair use provisions, then must be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity, and the same time must discourage blatant plagiarism. It, therefore, must receive a liberal construction in harmony with objectives of copyright law. Section 52 of the Act only details the broad • heads, use under which would not amount to infringement. Resort, must, therefore be made to principles enunciated by the courts to identify fair use.

¶34One crucial test, of the four-factor test, as developed by the American courts, is the transformative character of the use. The Courts should in cases like present ask whether purpose served by subsequent (or infringing) work is substantially different (or is the same) from the purpose served by the prior work. The subsequent work must be different in character; it must not be a mere substitute, in that, it not sufficient that only superficial changes are made, basic character remaining same, to be called transformative. This determination, according to the Court is closely knit with the other three factors, and therefore, central to the determination of fair use. If the work is transformative, then it might not matter that the copying is whole or substantial. Again, if-it is transformative, it may not act as a market substitute and consequently,will not affect the market share of the prior work."

¶106After spelling out the aforesaid tests, as laid down in various judgments, the learned Single Judge applied the same to the present case and held that the respondent's work could be said to be "transformative" amounting to "review" under Section 52(1) (a)(ii) of the Copyright Act. We may reproduce this discussion as well verbatim: "35. In the present case, this court has considered plaintiff's textbooks, as well as the defendant works. The following aspects stand out; (a) The plaintiff's textbooks, so far as they contain the —theoryll portions, have not been copied;

(b) The plaintiff's books do not contain the steps, or process aiding the solutions (or answers) to questions/ problems, in each chapter. The learner is expected, on the basis of the text and the theory, to apply his mind, solve such problems

(c) The defendants' copies do not contain the text and the theory portions, analyzing the problems; (d) The defendants' copies contain the questions as well as answers, which are found in the plaintiffs' textbooks;

(e) The defendants provide problem solving —step-by-stepll method to arrive at answers to the questions.

¶36A careful: analysis of the above would show that whereas the plaintiffs', texts do not contain or describe the, step-by-step process of arriving at solutions (answers), the defendants' books provide them. The defendants' books do not contain the theoretical or explanatory content-they are present in the plaintiffs' textbooks. The use of questions and answers.by the defendants, who provide the step-by-step process of reasoning, is for a different purpose. Though to a purist or one who delights in intellectual pursuits, such works may be distasteful, - even offensive - there is no gainsaying that they neither pretend to be textbooks, nor reproduce all that are contained in them. They are designed to cater to a category of student —weakll in their understanding of the subject.

¶37The purpose and manner of use of the questions found in the plaintiff's textbooks, by the defendants is thus •different; additionally, in their books, missing in plaintiff's works are the steps or process of problem solving. Thus; the defendants' works can be said to be _transformative', amounting to —reviewll under Section 52 Tl) (a) (ii) of the Act. Here, the term —reviewll has to be interpreted in the context.The plaintiffsclaim to copyright is premised the work being a —iiteraryllone. The review - or commentary, of a part of such mathematical work - too would have to be seen in the background of this claim. 38, —Reviewll according to the Shorter Oxford Dictionary (Fifth edition) means —view, inspect or examine a second time or again..11 In the context of a mathematical work a review could involve re-examination or a treatise on the subject. In .that sense, defendants' revisiting the questions, and assisting the students to solve then, by providing the —step by stepll reasoning prima facie amounts to a review, thus falling within the —fair dealingll provision of Section 52 (1) (a) (ii) of the Act." •107. On the basis of the aforesaid discussion, the. learned Single Judge concluded that the-appellants had not any prima facie case and in any event, the publication of the respondents were safe by 'fair use' doctrine. As the consequence, the interim injunction application filed by appellants has been dismissed and application of the respondent under Order XXXIX Rule 9 of Code of Civil Procedure praying for vacation for the interim order has been allowed. ,108. It is, in these circumstances, the appellant had approached Division Bench of this Court by present intra-Court appeal.

¶109As already taken note of above, the learned Single Judge has, in the impugned order, formulated two issues and answered . the same. Arguments were addressed by the learned counsel for the parties on those issues. For the sake of convenience, we reproduce the same here again: RFA (OS) No.21 of 2009 and FAO (OS) No,458 of 2008 Page BO of 89

(i) Whether that part-of the work of the plaintiff (questions/exercises), which the defendants had reproduced, prima facie, merits-copyright protection?

(ii) If it does, have the defendants sufficiently made out a 'fair dealing' or a 'fair use' defence at this stage? iSSUE Mo.Ci)

¶110On this issue, the learned Court has prima facie held that the test of creativity in the worl< of appellant had not been satisfied and no copyright could be claimed therein. This proceeds on the reason that mathematical questions are expression of laws of nature. The discovery of such laws cannot confer monopoly to those who describe it. The reason is that language has a limited medium, which enables description of such laws of nature - in only a few ways. With respect, we are unable to subscribe to the aforesaid view of the learned Single Judge. It is the Mathematics which is the expression of laws and nature. However, there can be different ways of explaining touching this subject. If a person writes a book on Mathematics adopting his own innovative methods in making the subject • easily understandable, such a work would be the result of his/her creative thinking and would become a subject matter of copyright protection. It is nobody's case that a textbook written on Mathematics would not qualify for copyright protection. It would be equallya matterof creativityto devise and think of such questions in the field of Mathematicsthat may give better understanding of the subject to readers/students. Therefore, according to us, doctrine of 'modicum of creativity' is present when even Mathematical questions are framed by the author of the book to test the knowledge and understanding of the students. In the area of Mathematics itself, a particular topic can be in the course at different level. For example, topic can be in CBSE course and at the same-time, it may be taught at Graduation or Post Graduation level to the students of Mathematics. However, whereas for CBSE students, easier aspects of the topic would be dealt with but for graduates/post graduate, the final and more difficult nuances of the same subject would be taught. How this very topic is to be taught to the students at lower level and higher level would itself be a matter of challenge and creativity for author. Much skill, labour and dexterity would be required to even devise questions that may be required to be framed for students of two different levels. In such a case, it cannot be said that since Mathematics is the law of nature, a person who has developed different question banks for each exercise, the same ,is not the result of his creativity. It is claimed by the appellant that the author, of the appellant's work, now deceased, was a renowned Mathematics teacher and he-made the present book out of his extensive experience, exercisinghis judgmentand sl<ill in additionto his labour. That he had the requisite skill, that of a Mathematics scholar and teacher, for the creation of the subject work and the.existence and exercise of his judgment in creating the book cannot also be doubted. It is submitted by the appellant that the late • author exercised his judgment in the placement of chapters in the book, the placement of topics within those chapters and also placement of questions in each unit - all three being inextricably linked to the author's idea of a learning curve by which, in the estimation of the author, student will appreciate the contents of the syllabus better. It is also claimed that the appellant's book does not blindly follow the syllabus provided by the State Board. A bare perusal of the index and its juxtaposition with the syllabus would amply demonstrate that the author altered the scheme of chapters in the book and made a deviation from the sequence prescribed by the syllabus. This deviation was made in accordance with the author's idea of a better structure for teaching. The mere existence of a syllabus does not denude a book, which is otherwise subject to copyright protection, of such status. The Supreme Court in State of Madhya Pradesh Vs. !Ram Raghubsr Prasad Agarwa! [(1979) 4 SCC 686] had held that syllabus is to convey sufficient information for those concerned to know generally what courses of instruction are' broadly covered under the heading mentioned, so that they RFA (05) No.21 of 2009 and FAO (OS) No.458 of 2008 I may offer textbooks for such courses. If syllabus is only a • broad indication of the topics to be covered in a text bool<, then the mere existence of a syllabus ought not to leave a book devoid of copyright protection. It is trite law that 'expression' as opposed to 'idea' is the subject matter of copyright. There are many other authors who have compiled and created other books, some even very successfully, on the same syllabus and have still managed to bring about a book materially different in terms of structure, form and substance from the appellant's book. All such other books will have valid subsisting copyrights in the manner of expression adopted by them.

¶111We agree with the submissions of Mr. V.P. Singh, learned Senior Counsel for appellant that notion of originality discussed in Eastern Book Company (supra) is that a derivative work qualifies to become original when such work is a result of skill, labour, capital a minimum degree of creativity. That is sufficient to acquire original creativity. Once we examine the appellant's work applying this test, we are • convinced that the work of the appellant qualifies the test of • • "minimum degree of creativity". "Originality" with regard to a new work that is a primary work does not emanate from creativity. Creativity is inherent in a new work. We have already elaborated this aspect in detail hereinabove while dealing with RFA (OS) 21 of 2009 and there is no-reason to repeat the same. RFA (OS) No,21 of 2009 and FAO (OS) No.458 of 2008

¶112Thus, we hold that, in principle, even in creating such arithmetical exercises, the author will have copyright.

¶113Coming to the facts of this case, one very crucial and significant aspect needs to be dealt with before arriving at a conclusion as to whether the appellant will have copyright in the work in question. We are posing this question having regard to a very strong and formidable plea put forth by the learned counsel for the respondents, viz. the appellant cannot claim' copyright in the questions in the textbook as most of these questions are ad verbatim reproduction of other textbooi<s like R.D. Sharnia, S. Chand Publication & Laxmi Publication. Here, we find some merit in this submission. The respondents have been able to show that a large number of questions which were part of the appellant's textbook, of which infringement was being claimed, were in fact, verbatim reproduction from other textbooks. A list of sample questions which are identical/verbatim to questions available in earlier textbooks is available at Volume III, Page. 251 to 272 of the appeal paper book. It is possible that there may be more questions contained in the' appellant's textbooks which are verbatim reproduction from an earlier textbook. This is to be established at the stage of trial. The factum of lifting commonality of questions in the appellant's textbook'.and in f|0 R.D. Shama,

¶5Chand, Laxmi Publications, etc. is not even disputed by tine appeiiant.

¶114The oniy explanation put forth by the appellants is that such copyright questions are not many. However, at this stage, when only an interim application under Order 39, Rule I and II filed by appellant is under consideration and thd respondents are able to demonstrate that many questions are copied from other worl<s and possibility of many more such questions copied by the appellant from other textbooks cannot be ruled out, it is difficult to accept the claim of the appellant that questions incorporated in the appellant's work is original work of the author, What is highlighted is that the respondents have been able to expose that the work of the appellant is not entirely original and it has drawn on the existing work of so many other persons raising sufficient doubt as to the ownership of such copyrights. ISSUE MO.2

¶115We have already formulated the test for ascertaining as to whether in a given situation publication of a guide book would be violative of a copyright in a textbook in detail while dealing with RFA (OS) No.21 of 2009. It is not necessary to repeat the same. Suffice is to state that it will be permissible to publish a guide book if it qualifies the proper description of a guide book and becomes a derivative work of the autlior wtio lias produced such guide bool<.

¶116That apart, in the present case, it is to be borne in mind that the appellant's bool< is prescribed as textbool< in Class XI in Jammu & Kashmir. Therefore, it would be permissible for a person to write, review, critic or guide book on the said work. Insofar as guide book is concerned, with which we are concerned, it is to be shown'.that it provides explanation, step by step process for reaching the answer to the mathematical problems. Thus, it would be permissible for the person writing guide book to take questions from exercises prescribed at the end of each chapter in the appellant's book. At the same time, it is to be shown that the person writing the guide book has given step by step answer to the said questions which part is not.present in the appellant's work and the same is done for facilitation of the students, particularly, weaker sections so that they are able to get the assistance from such, guide book for easy and better understanding. When we apply this test to the present case, we come to the conclusion that respondent's guide -book has met this requirements/qualifications. , It is rightly pointed out by the learned Single Judge that the appellant's text does not contain or describe the step by step process or arriving at solutions or answers whereas respondent's guide book provides same. The appellant's text book contains the theoretical or RFA (OS) No.21 of 2009 and FAO (OS) No,458 of 2008 fl explanatory contents in respect of each chapter, that is not taken/adopted by the respondent in its book. There is no copy of these contents by the respondents. The respondent has simply used the questions and contribution of the respondents lies in providing step by step reasoning. This is for different purpose. Learned Single Judge has rightly remarked that many academics may not like these guide books and to a purist or one who delights in intellectual pursuits, such works may be distasteful or even offensive, nevertheless, such works/guide books are produced and designed to cater to weak category of students in their understanding of the subjects. The purpose and manner of the use of the questions, which are fo-und in appellant's text books by respondent is, therefore, different. Once we qualify the work of the appellant entitled to copyright on the ground that it involves creativity, the same standard would apply to the .respondent's work as well. There is a creativity attached in giving step by step solution to the questions. It is a matter of common knowledge that many Mathematical problems can be solved in the different manner. It is also equally a matter of common knowledge that even if there is only one manner of solving a particular Mathematical problem, it may be solved with fewer steps and for better and easy understanding, other person may evolve more steps. RFA (OS) No.21 of 2009 ahd FAO (OS) No.458 of 2008 Page B8 of 89 f'3

¶117On this ground, we agree with the uitimate-conclusionof the learned SingleJudge in dismissingthe application under Order XXXIX Rule 1 & 2. We, thus, dismiss this appeal. AUGUST 03, 2011 pmc </n5^\ ' Page 89 of S9

% IN THE HIGH COURT OF DELHI AT NEW DELHI FAO (OS) No.458 of 2008 Reserved On: May 23, 2011. Pronounced On: August 03, 2011. THE CHANCELLOR MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD through ; ...APPELLANT Mr. V.P. Singh, Sr. Advocate with jvir. Rajiv Bansal, IMr Saurabh Sinha and |Vlr. Harshit Agarwal, Advocates. VERSUS NARENDRA PUBLISHING HOUSE AND ORS.. . .RESPONDENT through: Ms. Prathiba M. Singh with IMr. Sudeep Chatterjee, Advocates. CORAM HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE SURESH KA5T 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI. I. For Orders, see RFA (OS) No.21 of 2009. AUGUST 03, 2011 pmc 1- tit (A.K. SIKRI) JUDGE (SURESH KAIT) JUDGE Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. + IN THE HSGH COUE^T OF DELHI AT MEW • FIFA (OS) Wo.21 of 2009 FAO (OS) !\Jo.458 of % Reserved On: May 23, 2011. Pronounced On: August 03, 2011. (1) • RFA (OS) Nb,21 of 2009 . SYNDICATE OF THE PRESS OF THE UNiVERSTSY.OF CAMBRIDGE ON BEHALF OF THE CHANCELLOR, MASTERS AND SCHOOL through : VERSUS .D. BHANDARS & ANR= through: (2) FAO (OS) No.458 of 2008 THE CHANCELLOR MASTERS AND SCHOLARS OF THE UNJVERSfTY OF OXFORD through : VERSUS . . . APPELLANT Mr. A.S. Chandhiok, Sr. Advocate with Ms. Jyoti Taneja, Advocate Mr. Saurabh Kirpal, Advocate. . . .RESPONDENTS Mr. S.K. Dubey. with Ms. Sangeeta Goel, Mr. Mohit Goel Mr. Sidhant Goel Advocates. ...APPELLANT Mr. V.P. Singh, Sr. Advocate with Mr. Rajiv Bansal, Mr Saurabh Sinha and Mr. Harshit Agarwal, Advocates. NARENDRA PUBLSSHING HOUSE AND ORS.. . .RESPONDENT through: Ms. Prathiba M. Singh with Mr. Sudeep Chatterjee, Advocates. RFA (OS) No.21 of 2009 and FAO (OS) No.458' of 2008 CORAM HOIM'BLE MR. JUSTICE A.K. SIfiCPJ ' HOM'BLE MR. JUSTICE SOilESH KAIT 1. WhetherReportersof Local newspapers may be allowed to see the Judgment? 2. To be referredto the Reporteror pot? ^ 1.^ 3. Whether the Judgment should be reported in the Digest? A.K. SEKl^i, i. 1. The presentappeal is filed againstthe judgmentby the learned SingleJudge in C5 (OS) No. 1274 of 2004, wherebythe Hon^ble SingleJudge dismissedthe suit filed by the appellant herein to restrain the defendants therein (respondents in this appeal) from selling books published by them and titled MBD English Guide B.A./B.Sc./B.COM Part 1 (Guru Nanak Dev University), MBD English Guide B.A./B.Sc./B.COMPart II (Guru Nanak Dev University) and MBD English Guide B.A./B.Sc./B.COM Part (Guru Nanak Dev University). 2. . The appellant, Cambridge University Press, the printing and publishing house integratedly attached to the University of Cambridge is one of the oldest printing and publishing houses of the world. "Advance English Grammar by Martin Hewings", one of the leading publications of the appellant and the subject matter herein, has been prescribed used by many universities all over the Globe including India. This work is also ' prescribed in Guru Nanak Dev University, Amritsar, Punjab for the students of B.A. Part, I, 11, 111. The grievance of the appellants is that the respondents are publishing and selling books, as titled aforementioned, which do contain illegal unauthorized ad verbatim reproduction of literary content of the grammar exercisesand keys thereto given in units 1 to-120 of the appellants' publicationtitled "Advance English Grammar. by Martin Hewings",. 3. Raising this grievance, the appellant filed the aforesaid Suit on the Original Side of this Court to restrain the respondents . herein from selling books published by them entitled MBD English Guide B.A./B.Sc./B.Com Part-1 (Guru Nanak Dev University), MBD English Guide B.A./B.Sc./B.Com Part - II (Guru Nanak Dev University) and MBD English Guide B.A./B.Sc./B. Com Part - III (Guru Nanak Dev University) on the premise that these books contained ill