Monthly Archives: July 2012

Term ‘Originality’ with reference to Copyright Law

In Newspaper Licensing Agency Ltd v Meltwater Holding BV (CA), [2012] Bus LR 53, it was held as under:

As Peterson J said in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, 608–609 (approved by the House of Lords in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273, 277–278, 285 and 291):

“The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of ‘literary work’, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in original or novel form, but that the work must not be copied from another work—that it should originate from the author.”

Originality involves the application of skill or labour in the creation of the work, Interlego AG v Tyco Industries Inc [1989] AC 217, 259–263. The skill or labour need not be directed to the creation of particular modes of expression; it can be deployed in the selection or choice of what should be included in the work. Thus copyright protection is available to verbatim reports of interviews and public speeches: see Walter v Lane [1900] AC 539 and Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320.

In a Leading Judgment of the Supreme Court of India-Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, while discussing the issue of originality in relation to the Copyright Act, 1957, it was held as under:

The word “original” does not mean that the work must be the expression of original or inventive thought. The Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work—that it should originate from the author; and as regards compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation. The words “literary work” cover work which is expressed in print or writing irrespective of the question whether the quality or style is high. The commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection will not be entitled to copyright. The word “original” does not demand original or inventive thought, but only that the work should not be copied but should originate from the author.

The Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada, (2004) 1 SCR 339 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. This approach is held to be consistent with the “sweat of the brow” or “industriousness” standard of originality on the premise that an author deserves to have his or her efforts in producing a work rewarded. Whereas the other courts have held that a work must be creative to be original and thus protected by the Copyright Act, which approach is consistent with a natural rights theory of property law; however, it is less absolute in that only those works that are the product of creativity will be rewarded with copyright protection and it was suggested in those decisions that the creativity approach to originality helps ensure that copyright protection is extended to the expression of ideas as opposed to the underlying ideas or facts. The Court has also noticed that those cases which had adopted the “sweat of the brow” approach to originality should not be interpreted as concluding that labour, in and of itself, would be a ground for finding of originality.

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Scope of Section 147 of the Negotiable Instruments Act

The Section 147 of Negotiable Instruments Act, 1881 reads as under:

47. Offences to be compoundable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.”.

In a recent decision of the Supreme Court – J.K. Industries Ltd.and ohers v. Amarlal V. Jumani and another, reported in (2012) 3 SCC 255 : (2012) 2 SCC (Cri) 125, it was held as under:

“Section 147 of the N.I. Act came by way of an amendment. From the Statement of Objects and Reasons of the Negotiable Instruments (Amendment) Bill, 2001, which ultimately became Act 55 of 2002, these amendments were introduced to deal with large number of cases which were pending under the N.I. Act in various courts in the country. Considering the said pendency, a Working group was constituted to review Section 138 of the N.I. Act and make recommendations about changes to deal with such pendency. Pursuant to the recommendations of the Working Group, the aforesaid Bill was introduced in Parliament and one of the amendments introduced was “to make offences under the Act compoundable”.

Non-compoundable offences have become Compoundable

It is clear from a perusal of Statement of Objects and Reasons that offence under the N.I. Act which was previously non-compoundable in view of Section 320, sub-section (9) of the Code has now become compoundable. That does not mean that the effect of Section 147 is to obliterate all statutory provisions of Section 320 of the Code relating to the mode and manner of compounding of an offence. Section 147 will only override Section 320(9) of the Code insofar as offence under Section 147 of the N.I. Act is concerned.

Therefore, Section 147 of the N.I. Act must be reasonably construed to mean that as a result of the said Section, the offences under the N.I. Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of the N.I. Act.     

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Recovery of Loan – Bank cannot be permitted to take possession of the hypothecated vehicle

In a recent Judgment of the Allahabad High Court in C.M.W.P. No. 71057 of 2011 decided on 09.02.2012, reported in 2012 (3) A.W.C. 2821 it was held as under:

“The bank or financial institution cannot be permitted to take a decision on their own that there has been a default and proceed to take possession of the hypothecated vehicle without giving an opportunity to the borrower to present his case. In this manner, the banks would be judging their own cause with the right of execution, as they themselves would unilaterally determine that there has been a default and proceed to execute their own decision by taking possession of the hypothecated vehicle through their own appointed agencies, which may be muscle men. Adopting such a recourse would clearly be a blatant violation of the mandate of Hon’ble Supreme Court.

In case of default in repayment of its loan, it is always open for the Banks to get the agreement with its borrower enforced through the process of law. Even the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which gives special power to the bank for realization of its dues also provides for certain safeguards. Section 13(2) of the act of 2002 has been interpreted by the Apex Court in the case of Mardia Chemicals Ltd. V. Union of India, (2004) 4 SCC 311 : AIR 2004 SC 2371 that the borrower has a right to submit his reply to the said notice. Pursuant to the decision of the Apex Court, sub-section (3-A) of Section 13 has been inserted making it obligatory on the financial institutions (including banks) to pass an order after considering the reply submitted by the borrower. It is only thereafter that proceedings for taking over possession can be initiated under Section 13(4) of the Act of 2002.”

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Quashing of Criminal Proceedings/F.I.R.

Section 482 of CRPC:

The Section 482 of Criminal Procedure Code, 1973 reads as below:

“482. Saving of inherent powers of High Court.— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

Basic Guidelines

In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604,  the Apex Court after reviewing large number of cases on the question of quashing the FIR, laid down the following guidelines:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The abovementioned principle was reiterated in Union of India v. Ramesh Gandhi, (2012) 1 SCC 476.

 

 

Fresh Investigation – Order for

 

State of Punjab v. CBI, (2011) 9 SCC 182

Section 482 CrPC, however, states that nothing in CrPC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under CrPC or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Thus, the provisions of CrPC do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order of the court or to prevent the abuse of any process of the court or otherwise to secure the ends of justice. The language of sub-section (8) of Section 173 CrPC, therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 CrPC for fresh investigation or reinvestigation if the High Court is satisfied that such fresh investigation or reinvestigation is necessary to secure the ends of justice.

 

Limitations Under

 

TGN Kumar v. State of Kerala, (2011) 2 SCC 772

It is equally trite that the inherent powers of the High Court under Section 482 of the Code have to be exercised sparingly with circumspection, and in rare cases to correct patent illegalities or to prevent miscarriage of justice. In Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551, a Bench of three learned Judges of the Apex Court had observed that:

“the following principles may be noticed in relation to the exercise of the inherent power of the High Court …:

(1) that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice;

(3) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.”

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Possession – Does not give any right or interest in the property

In Sham Lal v. Rajinder Kumar, (1994) 30 DRJ 596, on the question of possession, the Court in Para 13, held as below:

“Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of the law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider:

(1)    The person possessing,

(2)    The things possessed and,

(3)    The persons excluded from possession.

A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and a master.”

The ratio of this judgment is that merely because the plaintiff was employed as a servant or chowkidar to look after the property, it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying or claiming possession of the property or as would entitle him to compel the master from staying away from his own property.

Principles of law which emerge in this case are crystallized as under:

(1)    No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

(2)    Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

(3)    The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

(4)    The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.

(5)    The caretaker or agent holds property of the principal only on behalf of the principal. He acquire no right or interest whatsoever for himself in such property irrespective of his long stay or possession. Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (dead) through Lrs. (2012) 5 SCC 370.

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Amendment of Pleadings – Factors to be considered (Order VI Rule 17 – CPC)

In Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84, the scope of amendment of pleadings was considered and it was held thus:

“On critically analyzing both the English and Indian Cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1)    Whether the amendment sought is imperative for proper and effective adjudication of the case;

(2)    Whether the application for amendment is bona fide or mala fide;

(3)    The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4)    Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5)    Whether the proposed amendment Constitutionally or fundamentally changes the nature and character of the case; and

(6)    As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with the application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.”

In a recent Judgment of the Hon’ble Supreme Court – Rameshkumar Agarwal v. Rjamala Exports Private Limited and Others, (2012) 5 SCC 337, it was held thus:

“It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object or Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally amendments are allowed in the pleadings to avoid multiplicity of litigations.

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