the academy of general education vs. smt. b. malini mallya · yakshagana was then a part and parcel...
TRANSCRIPT
The Academy of General Education Vs. Smt. B. Malini Mallya
by admin — last modified 2009-12-05 17:00
NLS 05/12/2007/CR/Kar.
The Academy of General Education represented by the Registrar
Sri K.K. Pai and Mahatma Gandhi Memorial College Trust
represented by the President Dr. K. Mohandas Pal
Vs.
Smt. B. Malini Mallya D/o Late Sri B. Umanatha Mallya
NLS 05/12/2007/CR/Kar.
RFA No. 271/2004
V. Jagannathan, J.
Head Notes:
The bequest over literary works includes copyright over
dramatic work also since dramatic works are a part of
literature.
Bequest made in favour of Plaintiff was not only a residual
bequest and that she is entitled to copyright in respect of the
literary works and books.
JUDGMENT
1. A flower is inseparable from its fragrance. Waves do not exist
without the sea. There cannot be "night" without the day.
"Creation" does not exclude its creator. "YAKSHAGANA" cannot be
thought of without the name of Dr. Kota Shivarama Karanth (for
short "Dr. Karanath").
2. Dr. Karanth, who combined in himself the role of a Novelist, Play
writer, Essayist, Encyclopediationst, Cultural anthropologist, Artist,
writer of Science, Environmentalist, a Jnanapeeta Awards, all rolled
in one personality, was born in the year 1902. He left his indelible
impressions on the literary Map of Karnataka. He died in the year
1997. Three years before his deaths Dr. Karanth got his 'Will'
registered on 18.6.1994 and bequeathed copyrights of his 'literary
works' to Smt. Malini Malya (plaintiff).
3. A news item published in "Vijay Karnataka" News paper dated
19.9.2001 revealed that the Yakashagana Ballet directed by Dr.
Karanth was perforated at New Delhi. This gave raise to the plaintiff
filing a suit against the defendants praying for a declaration that the
plaintiff' is the exclusive copyright holder in respect of Yakshagana
Ballet and a direction to the appellants to pay damages to the
plaintiff towards infringement of her copyright. The trial court
decreed the suit of the plaintiff in part and the defendants are in
appeal This in abort is the alpha and omega of this case.
4. The plaintiffs case is that Dr. Karanth being the foremost authority
on Yakshagana, having spent much of his life on reviving a dying-
art, wrote number of books on Yakshagana apart from articles and
pamphlets and in course of time, Dr. Karanth evolved a new
distinctive dance, drama troop or theoretical system which was
named by him as "Yaksha Ranga" which in his own words mean
"creative extension of traditional Yakshagana". Dr. Karnath apart
from bringing in changes in the traditional form of Yakshagana on
all those aspects viz., Raga, Tala, scenic arrangement, costumes
etc., and also composed 7 verses or prasangas for staging
Yakshranga Ballet and these prasangas are:
1) Bhishma Vijaya (2) Nala Damayanthi (3) Kanakangi or
Kanakangi Kalyana (4) Abhimanyu or Abhimanyu Vada, (5)
Chitrangadha or Babruvahana Kalaga (6) Panchavati and (7)
Ganga Charitha.
5. It is the specific case of the plaintiff that all these prasangas are the
creative works of Dr. Karanth and by bringing about changes in
various aspects of Yakshagana, Dr. Karanth was successful in
making the people understand and appreciate Yakshagana in a
much better way and thereby his contribution to Yakshagana almost
led to reviving of the dying folk play. Even persons who were not
well versed in understanding Kannada language also appreciated
the Yakshgana ballet because of the creative work of Dr. Karanth.
6. Having thus laid the foundation, the plaintiff by referring to the will
executed by Dr. Karanth on 18.6.94 took up the stand that Dr.
Karanth had bequeathed thus 'copyright' in respect of "literary and
artistic works" in favour of this plaintiff and as Dr. Karanth was also
a original copyright holder of the 7 prasangas, the plaintiff by virtue
of the bequeath under the Will, had inherited the copyright in
respect of "Yaksharanga ballets" and therefore, it was impermissible
for anyone much less the defendant to organise public
performances of the 7 prasangas without the plaintiff's permission.
7. As one of the prasangas namely 'Abhimanu Vadha' was staged at
New Delhi, as per the News paper report, the plaintiff therefore, had
to take recourse to fifing of a suit as the appellants herein being the
defendants did not seek the plaintiff's permission. As the defendants
had committed infringement of her copyright by staging the
prasanga 'Abhimanyu Vadha' at New Delhi, the plaintiff sought for a
declaration that she be declared as the exclusive copyright holder in
respect of the above mentioned 7 Yaksha Ranga Ballets and also
claimed damages from the appellants for infringing her copy rights
and for other reliefs.
8. The appellants herein in their written statement repelled the above
stand of the plaintiff, by contending that although there can be no
two opinions about the literary greatness of Dr. Karanth, yet it is
not correct to say that the distinctive dance system named as
Yaksharanga was the contribution of Dr. Karanth. They also
contended that the very concept of copyright claimed by the
plaintiff, does not apply to the ancient folklore Yakshagana and
even if the stage art form was suitably modified, that does not give
raise to copyright. As far as the 7 prasangas are concerned, the
appellants contended that the matter found there in were written by
different persons in the decades past and therefore, the claim of the
plaintiff for copyright is misconceived. It is the specific case of the
appellants that Dr. Karanth was an office-bearer of Yakshagana
Kendra and the Yakshranga is the performing ensemble of
Yakshagana Kendra. The first appellant being the registered society,
the 2nd appellant trust has been running the collage known as M.G.
college Udupi, and the first appellant society has been providing
services to the trained students and therefore, any development of
Yakshagana was then a part and parcel of Yakshagana Kendra. The
Yakshagana Kendra consists of artists and students and through
them Dr. Karanth was able to stage the ballets and Yakshagana
Kendra also received funds from the Government.
9. It is the case of the appellants that the performance of Yakshagana
even in the ballet form by Yaksharanga will not be an infringement
of copyright because such performance is done in the course of the
activities of the 2nd appellant educational institution where
Yakshagana art was started. It was, therefore, farther contended
that the plaintiff cannot claim any copyright and there is no such
valid transmission of such right to the plaintiff by Dr. Karanth and
the manner in which the 7 prasangas are performed by the
Yakshagana Troop is such, that the ballet form conceived by Dr.
Karanth has not been adhered to in the manner in which that Dr.
Karanth had conceived the Yakshagana Ballet. On the other hand, it
is contended that the artists who performed the Yakshagana were
persons who are not trained by Dr. Karanth and therefore, there
cannot be any violation of the alleged copyright.
10. The above pleadings in essence, gave rise to the following issues
being framed by the trial court:
i) Does plaintiff prove that late Dr. Shivaramaji Karanth had
acquired copy right in respect of seven Yakshagana
Prasangas and also in respect of Yakshagana dramatic or
theatrical form i.e, Bhishma Vijaya, Nala Damayanthi,
Kanakaangti or Kanakangi Kalyana, Abhimanyu or
Abhimanyu Vadha, Chitrangadha or Babruvahana Kalaga,
Panchavati Charitha followed in the plaint?
ii) Has the plaintiff became entitled to the said right under
the Registered Will dated 18.6.1994?
iii) Does the plaintiff prove that her right under the said Will
was infringed by the defendants?
iv) To what relief's the plaintiff entitled?
11. The learned trial Judge upon considering the documents produced
by both the sides in the absence of oral evidence being let in and
upon hearing the learned Counsel for the parties, answered the first
three issues in favour of the plaintiff and the result was that the suit
of the plaintiff was decreed in part by holding that the plaintiff has
got exclusive copyright in respect of the 7 prasangas and that she is
entitled to the said copyright as a residuary legatee and further the
trial court by granting permanent injunction directed the appellants
heroin and their employees or agents from performing the above 7
ballets/prasangas in the manner, as distinctly evolved by Dr.
Karanth.
12. I have heard the learned Senior counsel Sri K.G. Raghavan for the
appellant and Sri T.N. Raghupathy for the respondent.
13. The contentions put forward by Sri. K.G. Raghavan for the
appellants are as under: The modifications/alterations said to have
been made by Dr. Karanth to the age old Yakshagana Ballet, by
renaming as "Yaksharanga Prasangas" do not constitute original
literary or dramatic work under Section 13(a) of the Copyright Act;
hence no copyright subsists in the said modified/ altered work. As
no copyrights exists in an idea Dr. Karanth, only conceived of new
ideas to project old styled dramatic works. There is no material to
show that the 7 Yakshagana Prasangas are the creative extension of
traditional Yakshagana and there is also no material placed to show
that the staging of any of the 7 prasangas had left an impressions
in the minds of the viewers, that, the said prasangas were by and
large, copies of Dr. Karanth's adoption of Yakshagana.
14. Even if a separate and an independent copyright can be said to
have been in existence in respect of 6 Yaksharanga Prasangas, the
said copyright vests with the appellants herein as Dr. Karanth had
authored 7 prasangas while he was in the course of employment
with the appellants. The residuary bequest made in favour of the
plaintiff does not entitle her to claim any right; much toe copyright
in respect of dramatic works of Dr. Karanth.
15. Elaborating the above submissions, the learned Senior counsel Sri.
K.G. Raghavan referred to the propositions of law laid down by the
Apex court in the case of (1) R.G. Anand v. Deluse Filsm AIR 1976
SC 1613, (2) N.T. Raghunathan v. All India Reporter AIR 1971 Bom.
48 and (3) Macmillan & Co., v. K & J Cooper 1923 L.R.109 and
contended that copy right does not exist an idea but it is only
inform in as much as violation of copyright in such cases will be
confined to the form, manner, arrangement and expression of the
idea by the author of the copy right work. By referring to the said
decisions, the learned senior counsel also submitted that where the
source being common, the similarities are bound to occur and in
such cases the courts should determine, whether or not the
similarities were concerning the fundamental or substantial aspects
of the mode of expressions, adopted in the copyrighted work, and
where the theme is the same, but is presented and treated
differently, so that the subsequent work becomes completely a new
work, no question of violation of copyright would arise.
16. Relying on the aforesaid principles, it was contended that the theme
of each of the 7 prasangas cannot be said to be this original literary
work of Dr. Karanth. But the changes brought about by Dr. Karanth
whether in respect of Raga, Tala, or scenic arrangement or
costumes can only be considered as minor changes only. Therefore,
it cannot be said that the 7 prasangas (original literary or dramatic
work) gave raise to copyright in them. The said submission was
sought to be re-enforced by referring to various prasangas from
Ex.P.60; a book titled "Yaksharangakkagi" written by Dr. Karnath
and learned Counsel also referred to certain passages from the
Autobiography of Dr. Karanth namely "10 faces of a crazy mind" a
translation of Dr. Karanth's autobiography in Kannada viz.,
"Huchchumanasina Hattu Mukagalu". the said translated work is
Ex.D.1.
17. By referring to certain passages from both these works, learned
senior counsel submitted that even Dr. Karanth himself did not
claim any copyright in respect of 7 prasangas and therefore, it is
too much on the part of the plaintiff to claim such a right in these
works or in the Yakshagana ballet. It was also submitted that as Dr.
Karanth did not bring about substantial changes in the field of
Yakshagana, the question of any copyright being claimed by the
plaintiff, therefore, will not arise. Pointing to the will executed by
Dr. Karanth, it was submitted by Sri. K.G. Raghavan that all that
Dr. Karanth had bequeathed in favour of the plaintiff is only a copy
right in respect of "literary work and books", but not in respect of
"dramatic work" and therefore, the question of copyright in
dramatic work also biting bequeathed in favour of the plaintiff
cannot be inferred from the contents of the will which document in
marked as Ex.P.1. No foundation is laid by the plaintiff to show that
the dramatic work also comes within the bequeath made in flavour
of the plaintiff.
18. As regards the literary work is concerned, it is argued that the
dramatic work is different from literary work as could be seen from
Section 13 of the copy right Act. In the absence of material being
placed before the trial court, by the plaintiff with regard to the form
in which Yakshagana ballet existed in the past and the change
brought about by Dr. Karanth, the plaintiff cannot claim any
copyright in the dramatic works of Dr. Karanth. There is also no
evidence placed in order to establish the creative extension brought
to the traditional form of Yakashagana by Dr. Karanth, more minor
changes, which can be equated as cosmetic changes, do not in
themselves give rake to copyright and the plaintiff has, therefore,
failed to establish her case by placing sufficient material in this
regard. As such the trial court was in error in answering issues No.
1 to 3 in favour of the plaintiff.
19. Another facet of argument of the learned senior counsel Sri. K.G.
Raghavan to that the plaintiff can be considered only as a
"residuary legatee" as per the language used in the will and
therefore, she is not entitled to claim copyright in respect of the
dramatic works of Dr. Karanth, and by virtue of being the
beneficiary as a residuary legatee. The trial court was, therefore, in
error in holding that, as a residuary legatee, the plaintiff is entitled
to copyright in respect of 7 prasangas.
20. As far as infringement of copyright to concerned, the learned senior
counsel submitted that there is absolutely no material placed before
the trial court by the plaintiff to show as to in what manner there
has been a infringement of Yakshagana Ballet of Dr. Karanth when
the performance was staged at New Delhi. As the evidence is
lacking in this regard and in the absence of any material placed to
show the resemblance between Yaksharanga Ballet as performed on
the directions of Dr. Karanth and the one that was staged at New
Delhi and in the absence of any evidence let in to show that the
impression that the viewer got while watching the performance at
Delhi was that of the performance resembling in all respects the
performances staged under the directions of Dr. Karanth, the
question of infringement of copyright does not arise.
21. In support of the submissions, the learned senior counsel for the
appellant placed reliance on the following decisions/authorities:
1) P. Narayanan-- Copyright & Industrial Designs
2) Copinger and Skone James on Copyright- 15th Edition
3) Intellectual Property, Patents, Copyrights and Allied
Rights.
4) Odgers Constructions of Deeds and Statues
5) (1908) 1 CHILDREN 503 Tate v. Thomas
6) (1920)1 KB 821 Tate v. Fullbrook
7) 1923 LEGAL REPRESENTATIVES 109 Macmillina & C.
v. K & J Cooper
8) AIR 1971 BOM 48 N.T. Raghunathan v. All India
Reporter
9) AIR 1978 sc 1613 R.G. Anand v. Deluxe Films
10) AIR 1985 FSK 525 Wiseman v. George
Weidenfeld & Nicolson Ltd
11) 1988(3) All ER 949 Interlego AG v. Tyco
Industries
12) 1989(2) All ER 1056 Green v. Broadcasting
Corpation of New Zealand
13) 1993 FSR 455 Macmillan Publisher v. Thomas
Reed Publications
14) AIR 2001 DEL 185 Eastern Book v. Navin J Desai
15) (2002)6 Kar.L.J. 232 Prestige Housewares Ltd. v.
Prestige Estate & Properties.
22. Sri. T.N. Raghupathy, the learned Counsel for the
respondent/plaintiff referring to the above contentions, submitted
that, at the out set, as both the parties did not lead any oral
evidence and as the authenticity of the document produced have
not been questioned and so also the executions of the will by Dr.
Karanth, the bequest made to favour of the plaintiff in respect of
literary works and books will also include all the dramatic works
authored by Dr. Karanth. As far as the contribution made by Dr.
Karanth towards reviving Yakshagana is concerned, learned Counsel
took me through the autobiography of Dr. Kurnath namely "Huccbu
Manasina Hathumukagalu" to submit that a plain reading of the
autobiography of Dr. Karanth as well as Ex.P.54 brochure of
Yakshagana and Ex.P.55 the book written by Dr. Karanth on
Yakshagana will not fail to convince the discerning reader, about the
enormous contribution made by Dr. Karanth towards traditional
folklore Yakshagana.
23. But it was also submitted that Dr. Karanth did deep study and
research into the ballot form by making several experiments in
different areas of Yakshagana ballet and made changes in all minute
details so as to make the Yakshagana folklore very popular among
the people. Minute care was taken by Dr. Karanth with regard to
Raga, Thala, scenic arrangement, cosmetics and even with regard
to the appearance of the actors on the stage and use of various
musical instruments and thus it was on account of Dr. Karanth's
deep study and enormous creative power that the 7 prasangas
came to be acclaimed not only in Karnataka but in the entire
country, and its fame spread to several countries out side India.
The documents produced by the plaintiff particularly Ex.P.2 would
go to show that the appellants recognized the work of Dr. Karanth
in the field of Yakshagana. By referring to Ex.P.59 which in a
pictorial description of Yakshagana-Folk play, it waft submitted that
Dr. Karanth brought about the transformation in the manner in
which Yakshagana ballet was performed and other documents
Ex.P.57 and Yaksharangakkagi Pravasa and Ex.P.60
Yaksharangakkagi testify this fact. It was submitted that
contribution of Dr. Karanth is substantial towards Yakashagana
Ballet.
24. As far as the contentions of the appellants that Dr. Karanth was
under the employment of the appellants is concerned, submissions
of the learned Counsel Sri. T.N. Raghupathy is that it is
inconceivable that a man of the stature of Dr. Karanth would have
been an employee under this appellants and there is absolutely no
material placed by the appellants to show that Dr. Karanth was
under their employment. Therefore, referring to the absence of
material placed by the appellants in proof of the said contention
taken and having regard to Ex.P.14 produced by the plaintiff, it was
submitted that the trial court had rightly concluded that to treat Dr.
Karanth as an employee of Yakshagana Kendra or working under
the contract of employment, can never be expected by any stretch
of imagination. Neither it can be said that the trial court was
swayed by the personality of Dr. Karanth. By referring to para 3 of
the plaint, it was submitted that the appellants herein have not
traversed the averments made by the plaintiff with regard to the 7
prasangas having been composed by Dr. Karanth and therefore, it
will have to be deemed as having been admitted by the appellants
that it was Dr. Karanth who did compose the 7 prasangas.
25. As far as the argument of the learned senior Counsel for the
appellants that mere marking of the document to not a proof of its
contents, is concerned, the submission of learned Counsel Sri. T.N.
Raghupathy is that both sides placed reliance only on the
documents and led no oral evidence and even in the written
arguments filed by the appellants, no such stand was taken with
regard to the contents of the document marked. Moreover, all the
documents were marked by consent of both the parties and the
appellants have failed to place any evidence to show that the
contents of the said documents are incorrect. Therefore, the
contention put forward by the appellant's counsel in regard to the
documents are concerned, it is only ah after-thought and as such
the said ground urged by the appellant's counsel does not carry
much conviction behind it.
26. As to the infringement of copyright is concerned, the submissions
made by the learned Counsel for the respondent is that the trial
court did not rightly grant any damages to the plaintiff because the
plaintiff had not placed material to show as to how far and to what
extent the performance at Delhi was in close resemblance to
Yaksharanga Ballet of Dr. Karanth and further more the plaintiff has
not filed any cross objections or has questioned the said decision of
the trial court and hence no fault can be found with the trial Court's
judgment. As far as the plaintiff claiming the copy right is
concerned, it is submitted by the learned Counsel for the
respondent that the 'Will' if carefully perused, would make it clear
that Dr. Karanath bequeathed not only the copyright in literary
works and books in favour of the plaintiff, but he has also
bequeathed to the plaintiff all that remains in respect of bank
deposits or other assets and properties not mentioned earlier in the
will to the plaintiff as a residuary legatee. Therefore, it is not correct
to contend that the plaintiff had no copy right in literary works and
the books of Dr. Karanth and that she only received as a residuary
legatee what was mentioned by Dr. Karanth in para 12 of his will.
27. Learned Counsel Sri. T.N. Raghupathy also placed reliance on the
decisions referred to by the appellants counsel, in particular to the
decision of the Apex court in R.G. Anand v. Seluxe Films and in N.
Raghunathan v. All India Reporter case. Apart from referring to the
above decisions, the learned Counsel also referred to the
observation made in Lal's commentary of 'copy right Act' and to
other literature on the subject.
28. In the light of the contentions urged by the parties as above and
having regard to the decisions cited, the following points arise for
consideration;
i) Whether the copyright bequeathed to the plaintiff by Dr.
K. Shivarama Karanth in respect of his literary works and
books includes the seven Prasangas also?
ii) Whether the plaintiff is disentitled to claim copyright on
the ground that she in a residuary lagatee under the will?
Point No. (i):
29. Before I venture to answer the point under consideration, it is
necessary to explain the following terms in order to appreciate the
case of the parties in proper perspective.
30. "Yakshagana" is given the meaning "dramatic composition by Rev.
F. Kittel in his well-known dictionary - "A Kannada- English
Dictionary". The said term is also called, as a distinct folk art of
Karnataka, Even according to the brochure published by the
Yakshagana Kendra, M.G.M. College Campus, Udupi, which is
marked as Ex.P-54, the term "Yakshagana" has been described to
mean the theatre form of Karnataka and in its concept of total
theatre dance, music, dialogue and decor, all are harmoniously
blended. Even according to Dr. Karanth, Yakshagana means a
particular style of music with characteristics of its own, distinct from
other two system of Indian music i.e., Hindustani and Karnataka.
31. "Ballet" is explained in The New Encyclopedia, Volume-I, 15th
Edition, as theatrical dance in which a formal dance technique is
combined with other artistic elements such as music, costume and
stage scenery. The academic technique itself is also known as
"Ballet".
32. Thus, from the above meanings given to the terms "Yakshagana"
and "Ballet", it can be said that Yakshagana Ballet is a form of
musical dance drama played in the open, air and also called as
"Open-air Drama" (Bayalaata) and it combines in itself the forms
which are, written literature music to set the song to proper tunes
and the elements of scenic arrangement, costumes all get
interwoven into the Yakshagana Ballet.
33. It is the case of the plaintiff that Dr. Karanth had brought about a
sea of change in the Yakshagana Ballet by making changes in
respect of raaga, thaala, scenic arrangement costumes and also the
manner in which the compositions are sung. In other words,
Yakshagana combines in itself more elements to produce an effect
of fantasy and imagination - song, dance, speech, acting, costumes
and background music all go into the final product i.e., Yakshagana
Ballet
34. As far as the contribution of Dr. Karanth is concerned, the
documents produced which are mostly books and brochures, some
of which have been authored by Dr. Karanth himself, are the only
material placed before the trial court to ascertain the contribution
made by Dr. Karanth to Yakshagana Ballet. At this stage itself, I
would like to mention that though the learned Counsel for the
appellant strongly contended that mere production and marking of
documents itself cannot be construed as proof of the contents
thereof, the said submission does not carry much conviction behind
it for more than one reason.
35. First is that, all the documents that were produced before the trial
court were marked by consent of both parties and either in the
written arguments filed or in the course of the arguments before the
trial court, the appellant did not question the authenticity of the
works of Dr. Karanth which were marked in evidence by consent nor
was there any material placed by the appellant to show that the
contents of various books marked in evidence were not correct.
Therefore, having accepted the said position before the trial court
and also having relied, on the very documents, which are books and
brochures, even in the course of arguments before this Court, it is
not open to the appellant now to contend that mere marking of
documents is no proof of the contents thereof. In fact, the learned
Counsel for the appellant also referred to various passages in the
autobiography of Dr. Karanth as well as the other work to contend
that the changes brought about by Dr. Karanth to Yakshagana
Ballet were only on the fringe. Under the said circumstances, I do
not find any merit in the said contention urged with regard to the
documents which were produced and marked by consent of both
parties. In this connection, I also place reliance on a decision of the
Apex Court in the case of P.C. Purushothama v. S. Perumal (A.I.R.
1972 S.C. 608) and in the said decision, the Apex Court has held
that once a document is properly admitted, the contents of the
documents are also admitted in evidence, though those contents
may not be conclusive evidence.
36. Having said thus about the documents, it is proper at this juncture
to refer to the autobiography of Dr. Karanth to find out the extent
of contribution made by Dr. Karanth towards resurrecting the dying
art Yakshagana.
37. Ex.D-1 to the translated version of the autobiography of Dr.
Karanth and it is translated by Shri H.Y. Sharada Prasad and it is
titled "Ten faces of a crazy mind". Referring to Yakshagana
Prasanga and the changes brought about, Dr. Karanth says thus:
“As this mode of music was a part of drama, it could be
employed for expressing a variety of emotions and moods. In
classical music we have only one dominant sentiment, namely
devotion. But here in Yakshagana I found hundreds of songs
bringing out other emotions as well. When I went deeper into
Yakshagana literature, I found the names of hundreds of ragas in
old prasangas (plays). Apart from the ragas of the Hindustani
and Karnatic schools there were many ragas distinctive to
Yakshagana, such as Durdhari, Panchagati, Kannada, Hoovu,
Kore, Mechchu, Mechali. This discovery astonished me. I took,
the help of Yakshagana Bhagavatas and friends who knew the
two classical traditions and wet out on research. I found that our
Bhagavatas have wholly forgotten or were ignorant of the old
ragas. Also, because they had not learnt their music by first
grasping the ragas but only by imitating some known
compositions, they drifted from raga to raga without realising it.
Even so, after three years of pursuit, it was possible to locate
and reconstruct as many as sixty-four Yakshagana rages. This
quest has bean described in Yakshagana Bayalata. I also realised
that Yakshagana was not just a fold form by an independent,
full-fledged school of music”.
38. At pages-168 and 169 of the autobiography, referring to the
research and the experiment done by him in Yakshagana, Dr.
Karanth has this to say:
“While doing this, I also researched its music, I was able to
collect a large number of ragas which had fallen into disuse. I
played them back to a large number of Bombay friends. I did not
know why Yakshagana's reach should be narrowed down by
linguistic constraints.
Earlier, while carrying out experiments in Yakshagana, I had felt
that a dance form with such arresting costumes and such
powerful music might be presented in ballet form so that people
of other language, regions could also take to it. If this attempt
was to succeed, we would require Bhagavatas and professional
dancers who would find the venture remunerative....
...I tried with the help of the Bhagavatas to bring out lost rages
back into vogue. I tried to see that the song served the purposes
of both music and literature. To add to the appeal of the
orchestra, I included the violin, the clarionet and the saxophone.
In two months, we had two Yakshagana operas ready-- Bhishma
Vijaya and Abhimanyu Vadhe.
39. At page-201 of the translated version of his autobiography, we find
the following:
“All my thoughts were on how the full potentialities of an art
medium could be realised. I did not consider the purpose of
music to play acrobatics with ragas and talas, which would be a
misuse of the medium. In Yakshagana, in particular, my aim was
to present an old prasanga in two hours through a combination
of dance and song which meant a rapport among raga, tala and
mood. Whatever the song had to communicate had to be put
across through dance and acting. As the normal practice was to
sing in high pitch, we should take the help of the clarinet or the
saxophone to provide the bass support. In dialogues and war
scenes, two Bhagavatas could be employed instead of just one.
And to provide some respite for the singer, we should use the
violin. We should improve the choreography so that the stage
looked filled with movement even in scenes other than the court
scenes and battle-scones”.
40. That Dr. Karanth took minute care in every aspect of the
Yakshagana Ballet is also clear from the following statement found
at page-203;
“One of the main problems is that our traditional Bhagavatas
could sing only in the way they knew. I did not add anything to
that tradition, but instead of the emphasis on the beat, I put
emphasis on acting out the emotions suggested by the words in
the songs and expression of mood through music. As director I
sang the songs for the benefit of the artistes and demonstrated
to them the gesture, posture and facial expression that best
brought out the spirit of the play. Of the two Bhagavatas,
Naranappa Uppoor grasped, my ideas fully. But Navwda was
unable to do so, and in the second year, in his place I co-opted
Rama Ganiga. I had the same experience with the maddale. It
was difficult for one of the players to exercise self-restraint in
regard to the volume. I was able to get a drummer called Ardi
Thimmappa, to play along with Hiriyadka Gopala. Another
advantage of doing the rehearsals in Puttur was that I was able
to get a local player called Gopala Krishna Dogra who could play
both clarionet and saxophone. I found that the saxophone gave
more strength and stability to the lower notes that the clarionet.”
41. That Dr. Karanth thus brought, about transformation in the
Yakshagana Ballet and enabled the folklore tradition to move far
ahead with the help of his creative extension of the tradition is also
referred to by him and here is what Dr. Karanth says at pages-288
and 289 of the translated version of his autobiography:
“Tradition imposes its inhibitions. New hopes and new yearnings
break those inhibitions. Tradition may yet persist and assimilate
the new force. Sometimes people may deliberately erase some
aspects of it. Or, because of the collective forgetfulness of a
people, many aspects maybe lost. In the name of entertaining
the masses, or owing to the craze for novelty, several art media
may be stuffed with incongruous bits and pieces that load to
their distortion.
I saw this happen in Yakshagana. This form cast a spell on me a
long time ago. I tried to identify those elements of Yakshagana
which represented its true tradition - in inspiration, in intent and
in drew, music and dunce. If we lost them, we would not be able
to make up for them through words. So my task, I though, was
to reclaim and preserve original ragas and dance modes,
costumes and ornamentation and make-up peculiar and intrinsic
to Yakshagana.”
42. Ex.P-55 to another work of Dr. Karanth, which is titled
"Yaksagana", which has a foreword by Shri H.Y. Sharada Prasad and
in this, Dr. Karanth writes thus in respect of his contribution to
Yakshagana (at pages-176-179):
“On the stage, these themes lasted 6-8 hours' duration - with
the singing of 250-300 songs. My first Job then was to select the
themes from the exiting lore. We realty had Bhagavatas who
mastered thirty or more plays that were musically rich and
linguistically (in Kannada) very, very simple. I could tackle them
with the help of elderly Bhagavatas who could sing out an entire
play continuously for 9 hours, i.e., from 9 p.m. to 6 a.m.
From such a lot, my job was to choose interesting scenes, whose
musical text was equally poignant. Such veterans like Sheshagiri
Kini and Januvarkatte Gopal Krishna Kamath who had served the
theatre for decades, could enlighten me a lot. I had to choose
some thirty or forty songs from each play and get them
recorded. In normal plays each composition had 4-5 stanzas, the
first line would spell out its motive (Pallavi) and substantiate it in
'anupallavi' and the later stanzas illustrate a situation or these
further. It is such choice in teems of language content and
musical depiction that guided toy words which consisted of
expounding its contents with necessary facial expressions, body
flexion and stepwork.
It is here that I had to create necessary movements in dance,
with no excessive display of stepwork and tala display by the
dancer or by the overbearing drummer.
Between 1960-65, I chose a few professional Bhagavatas,
accompanists and dance depictors. The Last group had no
occasion to speak. Their work consisted of rhythmic body
flexions, footwork display and movements with gestures that are
used in actual life. With this troupe chosen from the profession, I
exhibited the plays each year -giving performances from
Bangalore to Bombay and back - visiting Hubli, Belgaum,
Bhadravati, etc., a total of eight to ten performances that lasted
for a month. I was highly aided by a violinist or two who
accompanied the Bhagavata and could relieve him after the
portion of a song was flung and its contents depicted in dunce.
The high pitched cande was used only during introduction of
characters and battle, but no more in tragic or pathetic
situations. Violin took up the lead. The maddalegar or drummer
had to follow the 'bhava'.
...
...I had to create impressive ornaments like bangles, bracelets,
girdles and necklaces. There too, the headgear called Mundas, a
huge elephant-ear shaped turban, hid only red or black
background over which gold and silver ribbons were wound to
give an impression of radiant rays. Here also, too much
ornamentation used to drown the effect of radiating stripes.
...
Many of these plays have common characters like a sage, down
or servant etc., who enter the stage as messengers to characters
of these plays, as the theme demands. They come in shabby
dresses. I had to redo this old type with cloths of white material,
with red border. They were in contrast to the other fantasy roles
of a play.
In the good old days, the Bhagavata, his assistant (Sangeetgar)
and the drummer too had a specific dress. Now they enter in all
sorts of dress and figure as an eyesore to a fantasy drama.
In my own plays, I don't like the musicians and instrumentalists
to figure on the stage at all. They squat on the left or right side
of the stage, visible only in dim light. The stage is meant only for
the characters of a play.
I have retained all old choreography, whenever the characters
are introduced, I have created a few new ones in situations like
'water-sports', battles, moving in chariots etc. A lot of
choreography has gone in to make the 'drama' more spectacular
and also more intense.
The one main change that was introduced was in the prominence
given to songs sung on the stage. Only old songs which depict
action and the emotions of characters involved, are song by the
Bhagavata. I often ask whether it is the pertinent musical form,
that is essential, or the demand of the though content that
should gain prominence. This is what I mean lay 'form' and
'content. Dance has to befit these elements. It is this element
that speaks for the wealth of Yakshagana music. In the depiction
of dialogues two voices may complement each other.
...
The dancers will have to depict this content an the stage. This
needs repetition and so is followed by this violin. Since
Yakshagana music stresses the third octavo and uses very little
of the first, I had to choose some musical instrument that has to
make good the gap. I tried first the Clarionet and now am using;
the Saxophone. In South India, old time wind instruments like
Nadaswaram have yielded place Saxophone.”
43. Ex. P-60 is another work by Dr. Karanth titled “Yaksha-Ranga” and
speaking of the seven prasangas and the changes brought about by
him, the author says thus: (The text of the vernacular matter has
not been reproduced. Because Those are in Kannada Language if
you want those, please go to original web site)
44. Ex.P 58 is a brochure issued by the Yakshagana Kendra, Mahatma
Gandhi Memorial College Campus, Udupi, and referring to
Yaksharanga -Performing dance ensemble of the Yakshagana
Kendra, the following information is given:
“YAKSHA-RANGA represents the culmination of two decades long
effort of Dr. Kota Shivaram Karanth to restore yakshagana folk
theatre of Karnataka to its rightful place in the comity of national
art, particularly the realm of dance-drama. In its concept of total
theatre with dance, music, dialogue and decor all harmoniously
blended to create maximum artistic effect. Yakshagana lays
claim to be equal to any of the best but bettor known dance
forms of India.”
In the very same document, we also find the opinion of Janine
Bregon, a French Artist, and here it is reproduced:
“Behind this unique theatrical experience is the genius of Dr.
K.S. Karanth, whose imagination has created this brilliant
symphony of music and pantomime, verily of an international
class totally satisfying to the mind and the lenses.”
45. I have referred to the excerpts from the above documents because,
the parties did not load any oral evidence to throw light on the
contribution made by Dr. Karanth towards bringing about changes
in Yakshagana Ballet and the Seven Prasangas in regard to which
the plaintiff is claiming copyright Therefore, it has become
inevitable to look to the documents produced by the parties to find
out the extent of contribution made by Dr. Karanth to Yakshagana
Ballets.
46. What emerges from the above excerpts is that, Dr. Karanth did
bring about the changes in all expects of Yakshagana by taking
great pains in unearthing the lost raagas identifying the songs
which needed proper pruning and tuning, effected changes even
with regard to the type of instruments used, the scenic
arrangements, costume as well and thus left a stamp of his own on
Yakshagana Ballets.
47. Though Yakshagana Prasangas form the basis for the performance
of Yakshagana Ballet, the crucial question to be answered at this
juncture is whether the changes brought about by Dr. Karanth both
in relation to the musical and dramatic composition of the Seven
Prasangas can be brought under the expression 'literary work and
books' in respect of which Dr. Karanth had bequeathed copyright in
favour of the plaintiff. The answer to this question necessarily takes
us to the definitions of the expressions 'literary work', 'dramatic
work' and also to the relevant provisions of the Copyright Act, 1957.
48. Section 13 of the Copyright Act, 1957 ('the Act' in short) in the
heart and soul of the Act. The said section reads thus:
“13. Works in which copyright subsists - (1) the other provisions
of this Act, copyright shall subsist throughout India in the
following classes of works, that is to say,-
(a) original, literary, dramatic, musical and artistic
works;
(b) cinematograph films; and
(c) sound recordings.
(2) Copyright shall not subsist in any work specified in Sub-
section (1), other than a work to which the provisions of Section
40 or Section 41 apply, unless,-
(i) in the case of a published work, the work is first
published in India, or where the work is first published
outside India, the author is at the date of such
publication, or in a case where the author was dead at
that date, was at the time of his death, a citizen of
India;
(ii) in the case of an unpublished work other than a
work of architecture, the author is at the date of making
of the work a citizen of India or domiciled in Indian; and
(iii) in the case of a work of architecture, the work is
located in India.
Explanation.- In the of a work of joint authorship, the
conditions conferring copyright specified in this sub-section
shall be satisfied by all the authors of the work.
(3) Copyright shall not subsist-
(a) in any cinematograph film if a substantial part of the
film is an infringement of the copyright in any other
work;
(b) in any sound recording made in respect of a literary,
dramatic or musical work, if in making the sound
recording, copyright in such work has been infringed.
(4) The copyright in a cinematograph film or a sound
recording shall not affect the separate copyright in any work
in respect of which or a substantial part of which, the film, or
as the case may be, the sound recording is made.
(5) In the case of a work of architecture, copyright shall
subsist only in the artistic character and design and shall not
extend to processes or methods of construction.”
The expression 'literary work' has not been explained in much
wider words as could be seen from Section 2(o) of the Act,
wherein it has been defined as thus:
(o) "literary work" includes computer programmes, tables and
compilations including computer databases;
The expression "dramatic work" has been explained in Section
2(h) of the Act to mean thus:
(h) "dramatic work" includes any piece for recitation,
choreographic work or entertainment in dumb show, the
scenic arrangement or acting form of which is fixed in writing
or otherwise but does not; include a cinematograph film;
49. Since the learned senior counsel for the appellant Sri Raghavan put
more emphasis on the words "original work" appearing in Section
13 and as he has contended that the seven prasangas, which form
the basis for Yakshagana Ballet, are dramatic works and hence the
question of claiming any originality in the seven prasangas by Dr.
Karanth and muchless by the plaintiff does not arise, it is necessary
to refer to the leading decisions wherein the expression "original
work" has come up for interpretation before the courts.
50. In the case of University of London Press Ltd. v. University Tutorial
Press Ltd. reported in (1916)2 Ch.D., 601, the learned judge,
Paterson, J., expressed the following views with regard to the term
'original':
“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 an original or novel form, but that the work must
not be copied from another work that it should originate from
the author.”
51. In the case of Macmillan & Co. Ltd. v. K.& J Cooper reported in
1923 Indian Appeals, L.R. Vol.LI, 109, the judicial committee
approved of the above observations by holding that the question is
not whether the material which are used are entirely new and had
never been used before or even that they have been never been
used before for the same purpose, but the true question is whether
the same plan, arrangement and combination of materials have
been used before for the same purpose or for any other purpose. If
they have not, then the plaintiff is entitled to a copyright, although
he may have gathered hints for his plan and arrangement or parts
of his plan and arrangement from existing and known sources. He
may have borrowed much of his materials from others, but if they
are combined in a different manner from what was in use before...,
he is entitled to a copyright.... It is true that he does not thereby
acquire the right to appropriate to himself the materials which wore
common to all persons before, so as to exclude those persons from
a future use of such materials; but then they have no right to use
such materials with his improvements superadded, whether they
consist in plan, arrangement, or illustrations or combinations, for
these are strictly his own.... In truth, in literature, in science and in
art there are and can be few, if any, things which, in an abstract
sense, are strictly new and original throughout.
52. In the very same decision, Macmillan & Co., v. K & J Cooper,
dealing with the question of originality of a work, Lord Atkinson
said: "It will be observed that it is the product of the labour, skill
and capital of one man which must not be appropriated by another,
not the elements, the raw material, if one may use the expression,
upon which the labour and skill and capital of the first have been
expended. To secure copyright for this product it is necessary that
the labour, skill and capital expanded should be sufficient to impart
to the product some quality or character which the raw material did
not possess, and which differentiates the product from the raw
material. This distinction is well brought out in the judgment of that
profound and accomplished lawyer and great and distinguished
judge, Story J., in the case of Emerson v. Davies (1), decided in the
United States. Some of the points decided are stated in the
headnote to be first, that any new and original plan, arrangement or
combination of material will entitle the author to copyright therein,
whether the materials themselves be old or new. Second, that
whosoever try his own skill, labour and judgment writes a new work
may have a copyright therein, unless it be directly copied or
evasively imitated from another's work. Third, that to constitute
piracy of a copyright it must be shown that the original has been
either substantially copied or to be so imitated as to be a mere
evasion of the copyright."
53. Originality only in form but not in idea is the proposition of law that
emerged from the decision of the Supreme Court in R.G. Anand v.
M/S DELUXE FILMS & OTHERS (AIR 1978 SC 1613). That was a
case where the plaintiff being a playwriter and producer narrated
the play "HUM HINDUSTANI" to the defendant. Without informing
the plaintiff, the defendant made a picture 'NEW DELHI', which the
plaintiff alleged was based on his play. Two main issues which came
up for consideration were:
1. Is the plaintiff-owner of the copyright in the play "HUM
HINDUSTANI"?
2. Whether the film "NEW DELHI" an infringement of the
plaintiff's play?
The Apex Court held Issue No. 1 in favour of the plaintiff and
Issue No. 2 against. In the course of its judgment, their
Lordships, after considering the case law of both the England and
American and several authors of copyright, laid the following
principles to determine whether there has been any violation of
copyright, in para-44 of the said judgment, and the said
principles are worth recalling at this juncture.
54. Thus, on a careful consideration and elucidation of the various
authorities and the case law on the subject discussed above, the
following propositions emerge:
1. There can be no copyright in an idea, subject matter, themes,
plots or historical or legendry facts and violation of the copyright
in such cases is confined to the...manner and arrangement and
expression of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it
is manifest that the source being common, similarities are bound
to occur. In such a case the courts should determine whether or
not the similarities are on fundamental or substantial aspects of
the mode of expression adopted in the copyrighted work. If the
defendant's work is nothing but a literal imitation of the
copyrighted work with some variations here and there it would
amount to violation of the copyright. In other words, in order to
be actionable the copy must be a substantial and material one
which at once leads to the conclusion that the defendant is guilty
of an act of piracy.
3. One of the surest and the safest test to determine whether or
not there has been a violation of copyright is to see if the reader,
spectator or the viewer after having read or seen both the works
is clearly of the opinion and gets an unmistakable impression
that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated
differently so that the subsequent work becomes a completely
new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two
works there are also material and broad dissimilarities which
negative the intention to copy the original and the coincidences
appearing in the two works are clearly incidental no infringement
of the copyright comes into existence.
6. As a violation of copyright amount, to an act of piracy it must be
proved b clear and cogent evidence after applying the various
test laid down by the case law discussed above.
7. Where, however, the question is of the violation of the copyright
of stage play by a film producer or a Director the task of the
plaintiff becomes more difficult to prove piracy. It is manifest
that unlike a stae play a film has a much broader perspective,
wider field and a bigger background where the defendants can
by introducing a variety of incidents give a colour and
complexion different from the manner in which the copyrighted
work has expressed the idea. Even so, if the viewer after seeing
the film gets a totality of impression that the film gets a totality
of impression that the film is by and large a copy of the original
pla, violation of the copyright may be said to be proved.
55. The next decision which was referred to by the learned Counsel for
the parties is reported in AIR 1971 Bombay 48 (in the case of N.T.
Raghunathan and Anr. v. All India Reporter Ltd., Bombay.) The
question that arose in this case was as to whether the copyright
exists in headnotes of original judgments published separately in
the monthly parts of the plaintiff's publication called "Notes of
Unreported Cases" or "N.U.C." constitute the original literary work
or not, and the Bombay High Court held thus:
Para-10: The first point argued on behalf of the appellant was
that no copyright can be claimed in the matter of notes and
headnotes of the plaintiff. According to counsel the notes and
headnotes do not constitute any original work at all but are
mere abridgments of the original judgments. The plaintiff has
not filed any original judgment to prove that the notes
prepared on the basis of that judgment constituted an original
literary work. Now, upon the defendant's own showing, the
notes or headnotes of the plaintiff were abridgments of the
original judgments. In law, there is no doubt that a copyright
does not exist in a genuine and just abridgment for as has
been observed in an English case an abridgment may with
great propriety be called a new book and therefore is an
original literary work.
Para-11: It is not the case of the defendant that the head-
notes in plaintiff's Judgments of Courts. Therefore, they must
necessarily have been prepared by the exercise of some
human ingenuity and intellect and a reading of them indicates
the same also. In Sweet v. Benning (1655) 139 ER 838, which
was an almost identical case on facts Mr. Justice Crowder
observed at page 851: The head-note or the side or mariginal
note of a report is a thing upon which much skill and exercise
of thought is required to express in clear and concise
language the principle of law to be deduced from the decision
to which it is prefixed or the facts and circumstances which
bring the case on hand within some principle or rule of law or
of practice. The question, according to my notion is whether
that in not something substantial in which the law gives the
author or proprietor a copyright. It seems to be that although
the object of the defendants was imply to put together after a
manner of their own and for apupose quite different from that
for which the plaintiffs published their work, these marginal
notes, with others derived from other similar sources,
nevertheless they do avail themselves, to an extent which the
law does not warrant of the labour and skill and capital of the
plaintiff's and have appropriated to their own use that which is
substantially the property of the plaintiffs and a property of a
description which the statute intended to secure to them. I
have, therefore, though with great reluctance and difficulty,
come to the conclusion that however useful and meritorious
the defendant's work may be they were not justified, in
making the use they did of the plaintiffs' work, but were guilty
of piracy within the meaning of this Act of Parliament.
56. Even if the amount of originality is very small, still the law protects
it, is the principle that emerges from the decision in the case V.
GOVINDAN V. F.M. GOPALAKRISHNA KONE (AIR 1955 MADRAS 39).
While commenting on Clause 1(a) of the Copyright Act, author Lal
in his commentary on the 'Copyright Act' (III Edition) offers the
following insight:
“In V. Govindan v. F.M. Gopalakrishna Kone (AIR 1955 MAD
39) where the contention was that no originality can be
claimed in dictionaries compilations, guide books, maps etc.,
as they involve no brains, skill and labour, and the
compilation by one man will be exactly the same as the
compilation by any other man. The Court held: "I cannot
agree, many men have not got the brains, skill and labour to
compile dictionaries, gazetteers, maps, almanacs,
encyclopaedia and guide books. Nor all of such compilations of
the same nature. Then it will be obvious that only one
dictionary, gazetteer, grammar, map, almanacs,
encyclopaedia or guide book will sell, and not the rest. Any
man who refers to the Oxford Dictionary, Webster Dictionary
and Chambers Dictionary can easily find out the difference
between these dictionaries. There is considerable difference in
dealing with the subject-matter. That will be specially so when
the dictionary is not of all the words in the language, but of
'select words' considered suitable for high school boys, where
the very same words in one dictionary being taken over to
another and later dictionary will certainty prove piracy.”
57. In Copinger and Skone James on "Law of Copyright," (8th Edn., at
page 124) the law has been succinctly summarised as follows:
“In the case of compilations such as dictionaries, gazetteers,
grammars, maps, arithmetics, almanac, encyclopaedia and
guide books, new publications dealing with similar subject-
matter must of necessity resemble existing publications, and
the defence of 'common source' is frequently made where the
new publication is alleged to constitute an infringement of an
earlier one.
It is clearly recognised that all these books are capable of
having copyright in description, the amount of 'originality' will
be very small, but that small amount is 'protected by law',
and no man is entitled to steal or appropriate for himself the
result of 'another's brain, skill or labour even in such works.”
58. Having in view the above propositions of law concerning what
constitutes original literary work, I now deal with the contention of
learned Senior Counsel Sri K.G. Raghavan, namely, that 'dramatic
work' is different from 'literary work' and as Dr. Karanth
bequeathed copyright only in respect of 'literary work' and 'Books'
but not in respect of 'dramatic work', the plaintiff cannot claim
copyright in "Yakshagana Ballot Prasanga. Before I deal with this
contention, it is proper to excerpt relevant portions of the 'Will'
(Ex.P-1) executed by Dr. Karanth, bequeathing copyright in favour
of the plaintiff.
“Para 11: Since I left the house 'suhasa' I have been living in
a specialty built house "Manasa" of Smt. Malini Mallya, who
has built it with borrowed money at her cost. She had joined
my service as Copyist and later, she secured an employment
in Life Insurance Corporation of India. Ever since 1974 till now
in my old age she has been serving me with exemplary
devotion and sincerity. And in this occasion I must also
acknowledge with gratitude that she diligently cared and
nursed my wife Leela Karanth during her prolonged illness till
her last day. And she has cared and looked after me also
during my illness which at times has been quite serious,
enfeebling me for long period. In recognition of her devotion
and sincere affection towards me in 1986 I have dedicated
one of my novels namely, "Antida Aparanji" to her. I have
also placed on record her invaluable services to me in my
Memoirs, "Huchu Mansina Hathu Mukhagalu" 1991 Edition. In
my opinion, very long enduring and a signal service she has
done to me and to my literary works is, in writing a
bibliography of all my books - a highly meritorious and
scholarly work involving so much of painstaking research, that
it has been acclaimed and rated as the first of its kind in
Kannada and highly appreciated by Critics and Scholars. Apart
from this, she has collected and edited all my stray writings
from 1924 onwards upto date in eight sumptuous volumes
which are being published by Mangalore University. This work
also has brought her deserving fame and appreciation of
Scholars. Such painstaking service in this direction has
brought to light several of my hitherto untraced, forgotten
and unknown writings and thereby giving them extended or
renewed lease of life. For all these services, I hereby declare
that after my death copyrights in respect of all my literary
works shall vest with Smt. Malini Mallya and she alone shall
be entitled to receive royalties of all my books and she shall
be entitled to print, publish and republish and market the
same. Whatever she may earn thereby shall be her exclusive
income and property. No one else shall have any right or
claims for the same.”
59. Whether it can be said from the above contents of the 'Will' of Dr.
Karanth, that the bequest did not cover the 'dramatic works' of Dr.
Karanth?
60. From the meaning given to the expression 'dramatic work' in
Section 2(h) of the Copyright Act, 1957, it is clear that it includes
any piece of recitation, choreography work, the scenic arrangement
or acting form of which is fixed in writing or otherwise. Therefore, if
the recitation part of the dramatic work is fixed in writing and so
also the scene arrangements as well as the acting part, as the case
in respect of the seven prasangas by Dr. Karanth, those works
comes within the expression 'dramatic work'. Dramatic works are
also treated as dramatic literature. The new Encyclopedia Britannica
(Vol-IV) 15th edition, provides the following information about
"dramatic Literature":
"Dramatic Literature: the texts of plays that can he read, as
distinct from being seen and heard in performance.
The relations between dramatic texts and the performances
for which such writing was intended are neither simple nor
regular. In the case of the Greek dramatists of the 5th
century BC, the texts now available are a small selection
made by later copying and preservation. There is no way of
knowing how these relate, precisely, to the compositions
made available for the original productions. The problem here
as in may later periods is the relation between the words
written to be spoken or sung by the performers and the many
other elements of dramatic composition-in movement, in
scene and costume, and occasionally in music that the
performance would include. Some of these can be inferred
from the particular styles of writing, but most have to be
studied from other kinds of surviving accounts.
In later periods, and especially from the 19th century onward,
it became habitual to include in the written text of a play, and
especially in its independently published form, details not only
of scene and stage movement but also of the appearance of
the characters and of the states of mind intended to
accompany or to punctuate the spoken words. Some of these
later texts of plays resemble, in part, the printed modes of
novels or short stories. There is no doubt that the printed
texts of plays, in any these forms, can by read as literature.
Many of them are now regarded as being among the great
works of literature of the world: The Oreateia, King Lear, Peer
Gynt.
Most drama is a form of writing for oral and actual
performance, and it is in the period when imaginative writing
has been taken to be coterminous with "literature," and
especially with printed literature, that some of its elements
have been most persistently misunderstood. The phrase
dramatic literature has elements in common with the phrase
oral literature, when the condition of silent reading of print
has come to seem the normal or even universal condition of
the reception and study of imaginative writing. The name for
work within these conditions - "literature" - was transferred to
these other forms of writing intended primarily for oral
communication. The need for understanding the conditions of
oral performance is now more widely recognized. At the same
time, given this recognition, the texts of the great plays are
still read as dramatic literature, with a proper emphasis on
the distinguishing features of the dramatic.
61. In respect of copyright in original 'dramatic work', the following
observations found in Halsbury's Laws of England by Lord Hailsham.
Fourth Edition are very relevant:
“Only original works are protected under Part I of the
Copyright Act 1956, but it is not requisite that the work
should be the expression of original or inventive thought for
Copyright. Acts are not concerned with the originality of ideas,
but with the expression of thought, and, in the case of a
literary work, with the expression of thought in print or
writing.... There is copyright in original dramatic works and
adaptations thereof, and such copyright subsists not only in
the actual words of the work but in the dramatic incidents
created, so that if these are taken there may be an
infringement: although no words are actually copied. There
cannot be copyright in mere scenic effects or stage situations
which are not reduced into some permanent form.”
62. Thus, from a combined reading of the proposition of law laid down
in the above mentioned cases and the authoritative works referred
to above, which throw sufficient light on the topic under discussion,
and also having regard to the meaning assigned to the terms
"literary work" and "dramatic work" in the Copyright Act, 1957, the
following inferences can be safely drawn without fear of any
contradiction:
(i) There is no copyright in an idea, themes, plots and that
it is in the originality in the form of expression that the
protection lies. Even if the originality is very small, the
law protects it, provided, the originality is the product
resulting from the exercise of certain amount of labour
skill and judgment, being brought into play. The
expression 'literary work' refers to expression of thought
in printing or writing. The Copyright Act does not
require that the expression must be in an original or
novel form, but it should originate from the author. A
genuine abridgment of a literary work is an 'original
work' entitled to protection. Dramatic Work or Dramatic
Compositions like "Yakshagana Ballet" have elements in
common with literature. Printed texts of plays can be
read as literature. Texts of great plays are read as
dramatic literature.
(ii) In order to obtain copyright for literary, dramatic,
musical and artistic works, the subject dealt with need
not be original nor the idea expressed be something
novel, but what is required is the expenditure of original
skill or labour in execution and not originality of
thought.
63. The above analysis therefore impels me to take the view that
though Section 13(1)(a) of the Copyright Act classifies the works
into four categories namely original literature, dramatic, musical
and artistic in respect of which Copyright exists, that does not give
room to take the view that a 'literary work' has nothing to do with a
'dramatic work' and vice-versa. Similarly, it cannot be said that
musical work does not have an element of art in it. It is possible to
produce a literary work with dramatic elements in it, as in the case
of Charles Dicken's "Pickwick Papers". Dramatic works also could
contain in its, passages of great literary taste, as in the case of
great plays of William Shakespeare. Therefore, the main
classification as literary work and dramatic work cannot be
construed to mean that dramatic work has nothing to do with
literary work. The only difference I see in them is that the dramatic
work (plays) forms the text upon which the performance of the
plays rests whereas a 'literary work' enables one to read the printed
words. Neither of the two can be produced without the imaginative
skill of the author.
64. In view of the forgoing analysis of Section 13(1)(a) of the Copyright
Act, I have no hesitation in accepting the submissions of learned
Counsel Sri. T.N. Raghupathy, that dramatic work is also a form of
literature.
65. Having endeavoured to arrive at the above conclusion, it is time to
look to the facts presented by the patties in this case. I have
already referred to the documents produced by the appellants
themselves wherein it has been stated that Yakshagana Prasanga of
Dr. Karanth, is the creative extension of traditional form of
Yakshagna Ballet and in bringing about the transformation in
Yakshagana Ballet, Dr. Karanth made several changes in the
traditional folklore.
66. The manner in which Dr. Karanth proceeded to spend several
decades of his life in research, his experience, in studying the
minute aspect of Yakshagana relating to life of musical instruments,
cutting the duration of the songs by modifying and abridging the
original songs, introducing several ragas into song which ragas
hither to in oblivion, pushing the Bhagawathar to sing the songs
from behind the screen, enabling the actors to silently perform on
the stage and taking great care even in respect of the scenic facts,
the costumes and the appearance of the actors on the stage and
the manner of performances to a particular act, leads to the
irresitable conclusion that Dr. Karanth left no stone unturned in
reviving the art of Yakshagana Ballet. One cannot, but agree with
the opinion expressed by Sri H.Y. Sharada Prasad that Dr. Karanth
made a singular contribution to "Yakshagana Ballet" and became an
authority on the "Yakshagana Ballet".
67. Several changes brought by Dr. Karanth also pertains to the literary
side of Yakshagana Prasangas and as rightly pointed out by Sri T.N.
Raghupathy, the plaint averments at Para-3, concerning the seven
prasangas being composed by Dr. Karanth are not specifically
traversed in the written statement of the appellants and the said
fact is also evidenced from a look at Ex.P-60 - (Editor: The text of
the vernacular matter has not been reproduced. Please write to
[email protected] if the vernacular matter is required.)
wherein we find each of the seven prasangas begins with caption
(Editor: The text of the vernacular matter has not been reproduced.
Please write to [email protected] if the vernacular matter is
required.) which means that the text of the Yakshagana prasanga
form the basis for the Yakshagana Ballet directed by Shivarama
Karanth.
68. I am of the considered opinion that all the above changes brought
about by Dr. Karanth in respect of Yakshagana Ballet leads to the
inference that the imaginative faculties of Dr. Karanth permeated
the entire Yakshagana Prasangas and thus a new look was given to
the Yakshagana Ballets. I, therefore, hold that the bequest of
copyright in literary works and books in favour of the plaintiff by Dr.
Karanth, will have to be treated as the bequest covering the
dramatic works also since I have also drawn the conclusion that the
dramatic works is also a form of literature. Therefore, necessity of
mentioning copyright separately in respect of dramatic works does
not arise. The plaintiff, therefore, to entitled to copyright even in
respect of the dramatic works namely the seven prasangas, by
virtue of bequest made in her flavour in respect of copyrights and
books.
POINT NO. 2:
69. Another forcible submission made by the learned Senior Counsel
K.G. Raghavan, concerns the nature of bequest made by Dr.
Karanth in favour of the plaintiff. It is argued that a reading of para-
12 of the 'Will'-Ex.F-1 leaves no one in doubt as to the residuary
nature of bequest and therefore the plaintiff is not entitled to claim
copyright in respect of dramatic works.
70. Learned senior counsel in this regard relies upon several decisions
to submit that having regard to the contents of para-12 of the 'Will'
and by virtue of application of the principle ejusdem generis, the
bequest made in favour of the plaintiff will have to be confined to
the objects of the same class or kind which precede the bequest in
favour of the plaintiff.
71. I concede that the above rule referred to by learned senior counsel
Sri K.G. Raghavan, has been an established rule of construction.
Nodoubt, by reading para-12 of the 'Will' in isolation, one can
certainly arrive at the conclusion that the bequest made in favour of
the plaintiff is in the nature of residuary bequest. But, that is not
all, in the 'Will'-Ex.P-1. I have already referred to para No. 11 of the
'Will' while dealing with the topic dramatic works vis-a-vis literary
work and therefore if the 'Will' is read in its entirety and if we take
into account, the benefits that flow from the bequest made by Dr.
Karanth in favour of the plaintiff, it in not as if the plaintiff received
the bequest only in respect of the things which form the residuary
as mentioned in Para-12 of the 'Will', but the plaintiff also was given
the copyrights in respect of literary works and all books as well as
the right to print, republish and mark the literary works as well as
the books.
72. Therefore, I am unable to subscribe myself to the view expressed
by the learned senior counsel Sri K.G. Raghavan that the bequest
made in favour of the plaintiff was only a residual bequest and that
she is not entitled to copyright in respect of the literary works,
books, of Dr. Karanth. There is however merit in the submission
made by the learned senior counsel that the trial Court was in error
in holding that the plaintiff has the exclusive copyright in respect of
seven prasangas as a residuary legatee. To the said extent, the
judgment of the trial Court will have to be modified.
73. The next limb of arguments of learned Senior Counsel is that if the
copyright in the dramatic works of Dr. Karanth could be said to
have been in existence, yet as Dr. Karanth was under employment
of the appellants herein, it is the appellants who have the copyright
of seven prasangas of the Yakshagana Ballet. In this connection,
learned Senior counsel referred to the documentary evidence placed
before the trial Court and also to the contention taken in the written
statement by the appellants. This contention has been strongly
refuted by the learned Counsel Sri T.N. Raghupathy by submitting it
is rather unfortunate that a great literary personality like Dr.
Karanth, has been reduced to the status of an employee under the
appellants and having regard to the personality of Dr. Karanth as
revealed in Dr. Karanth's Autobiography, it is submitted that it is
inconceivable to think of Dr. Karanth being employee under the
appellants.
74. As far as this submission is concerned, I have no hesitation to
answer this point forthwith by stating that the appellants though
have taken the said contention in their written statement,
surprisingly the appellants have not bothered to place any evidence
to substantiate their claim. Therefore pleadings without evidence
cannot be looked into. Furthermore, having had the benefit of
reading the Autobiography of Dr. Karanth once again, in connection
with this case, one does not get the impression that Dr. Karanth
was in need of employment, particularly during the last part of his
career.
75. If I may say, the world is conscious of the poverty and penury with
which great writers of the past led their life and we do find such
situations existing even in the present days, in respect of several
writers and authors. But, fortunately for Dr. Karanth, he was in a
position to donate or to serve needy persons, as could be seen from
his Autobiography. The properties bequeathed by Dr. Karanth
among his children as well as to the plaintiff also bear testimony to
this fact, as Dr. Karanth had the good fortune to leave behind him a
substantial legacy, not only in the field of literature but even in the
material world.
76. Apart from the above facts emerging from the evidence, it is also
necessary to refer to the observations of one of the leading authors
of Copy rights in regard to exception to the general rule that the
author is the owner of copyright. One of the important exception is
in the case of employment. At page 47 of Whale on Copyright. IV
Edition, we find the following observations:
“That exception applies only to literary, dramatic, musical or
artistic works, and not to other types of copyright works.
Those works must be made by the employee in the 'course of
his employment'. Those words are repeated from Section 4 of
the 1956 Act. This means that even the copyright in a work
made by the employee in his spare time will belong to the
employer if the work was made for the employer's benefit and
if it falls within the scope of the employee's duties to make it.
As a matter of common law a person is an employee if he is
engaged under a contract of service. The principal facts to be
ascertained in deciding whether a person is or is not engaged
under a contract of service, as distinguished from a contract
for services, are the degree of control over the making of the
work exercised by the employer and the extent of which the
person doing the work is integrated into the business of the
person for whom he does it. On the other hand, a 'contract for
services' is one between a person and an independent
contractor who undertakes to perform specified services for
that person. Whether a particular arrangement is a contract of
service or contract for services is often a complex question.
Clearly, articles written by a journalist on a newspaper on a
subject prescribed by the editor are works made under a
contract of service. A contract for services would be that of an
independent author commissioned to write a review of a book,
the author being left the free exercise of his talents as he
thinks fit. A borderline case would be that of a researcher
working on a series of one-year contracts for a television
company, where the researcher is regarded as self-employed
for tax purposes, but receives some benefits of employment
form the television company, such as a pension or a staff car.
In those cases criteria other than those concerning an
author's intellectual creation determine whether or not he is
an employee or an independent contractor.
It is always open to the contracting parties to agree between
themselves as to how they wish to allocate copyright.”
77. Having thus considered the material on record and also the
proposition of law touching on the point, I am un-impressed by the
contentions put forward by learned Senior Counsel Sri. K.G.
Raghavan that Dr. Karanth was on the employment and therefore
the copyright if existing in respect of the dramatic works lies with
the appellants.
78. The next ground urged by learned Senior Counsel for the
appellants, concerns infringement of copyrights of the plaintiff in
respect of seven prasangas and particularly the prasanga entitled
"Abimanyu Vadha". The cause of action as already stated earlier
arose according to the plaintiff with the publication of news item in
"Vijaya Karnataka' newspaper to the effect that "Abimanyu Vadha"
was staged at Delhi and it is this incident that triggered, the present
suit is being filed. As far as the infringement of copyright is
concerned, there is no evidence placed by the plaintiff to show as to
the performance that was staged at Delhi and as to whether the
audience who were present were of the view that the "Abimanyu
Vadha" which was staged, reminded the viewers that what was
witnessed was, the carbon copy or the substantial copy of the work
of Dr. Karanth. Therefore having regard to the principles laid down
by the Apex Court to R.G. Anand' case, unless material is placed to
show the similarities between the Yakshagana Ballet that was
performed at Delhi and Yakshagana Ballets composed by Dr.
Karanth under his direction, it is not possible to say that the plaintiff
had established the foot of infringement of copyright by the
appellants, when there is no cogent material placed in by the
plaintiff in this regard.
79. I am, therefore, in agreement with the submissions made by the
learned Senior counsel Sri. K.G. Raghavan that the plaintiff has
failed to prove infringement of copyright in respect of one of the
seven prasangas viz., Abimanyu Vadha. The trial Court has rightly
declined to award any damages to the plaintiff, which finding of the
Trial Court does not call for any interference.
80. One other aspect to which I have to make reference before
concluding this judgment is with regard to the application filed by
the appellants for producing additional documents. It is the
submission of learned Senior Counsel Sri K.G. Raghavan that the
payments that were made in respect of Yakshagana Prasanga
staged at various places were a clear indication of copyright having
been existence in respect of said prasangas. Since, I have taken a
view that the copyright bequeathed in favour of the plaintiff in
respect of literature works and books also encompasses the
dramatic works or more particularly seven prasangas which are the
text for the Yakshagana Ballets, it is of no significance to consider
the documents sought and produced by the appellants. As rightly
submitted by learned Senior Counsel Sri. T.N. Raghavan, merely
because Dr. Karanth did not exercise his copyright in respect of
Yakshagana Prasangas, it does not lead to the inference that such
as right did not exist in Dr. Karanth. Hence consideration of the
application for production of additional documents therefore does
not arise.
81. The result of foregoing analysis and discussion is that the plaintiff is
entitled to copyright even in respect of the seven prasangas which
are the text for performance of Yakshagana Ballets and if the
appellants desire to stage any of the seven yakshagana ballet
prasangas as directed by Dr. Karanth in the manner and in the form
as conceived by Dr. Karanth, the Appellants can do so only in
accordance with the provisions of The Copyrights Act, 1957.
82. In the result, I pass the following judgment:
i. Appeal is dismissed.
ii. The judgment of the trial Court insofar as declaring the
plaintiff as the person having exclusive copyright in
respect of seven prasangas is sustained with the
modification that the said copyright vests with the
plaintiff by virtue of the bequest made by Dr. Karanth in
respect of literature works and books, but not as
residuary legatee.
iii. As far as the restraint order passed by the Trial Court
by granting permanent injunction to the plaintiff is
concerned, the same is modified by ordering that if the
appellants desire to stage any of the seven yakshagana
prasangas in the manner and form as conceived in all
respects viz., costumes, choreography and direction by
Dr. Karanth, the appellants can do so only in accordance
with the provisions of The Copyrights Act, 1957, in view
of copyright in seven prasangas vesting with the
plaintiff.
iv. In all other respects, the judgment of the trial court is
sustained.
Sd---
V. Jagannathan, J.