Team code: 12

GURU GHASIDAS VISHWAVIDYALAYA

SCHOOL OF LAW, GGV

Before

THE HON’BLE SUPREME COURT OF

UNDER ARTICLE 136 OF THE INDIAN CONSTITUTION

SPECIAL LEAVE PETITION NO. ………….. /OF 2018

IN THE MATTER OF

AUTHOR’S ASSOCIATION OF GOLMALAND.….......................................PETETIONER

vs.

GOVERNMENT OFGOLMALAND AND ANOTHER…………….……RESPONDENTS

MEMORANDUM ON BEHALF OF THE APPEALANT

MEMORANDUM ON BEHALF OF APPEALANT PAGE 1

 TABLE OF CONTENT

LIST OF ABBREVIATIONS………………………………………………………………3
INDEX OF AUTHORITIES ……………………………………………………………….4
STATEMENT OF JURISDICTION.……………………………………………..…..…...5
STATEMENT OF FACTS.…….……………………………………………………......... 6
ISSUES RAISED.…………………………...……..………………………………………. 8
SUMMARY OF ARGUMENTS ……………………………………………………..........9
ARGUMENTS ADVANCED ………………………………………...……………...…...10
1. WEATHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?
1.1 THERE IS SUBSTANTIAL QUESTION OF LAW...…………………………………10
1.2 THERE IS INFRINGEMENT OF COPYRIGHT...………………………………........11

2. WHETHER THE ACTIVITIES OF PUBLIC DIGITAL LIBRARY OF

GOLMALAND COMES UNDER THE DOCTRINE OF FAIR DEALING?
2.1 THE PDLG HAS COMPLETELY COPIED THE WORK OF AUTHORS INSTEAD OF
USING A SUBSTANTIAL PORTION. ...……………………………………………..11
2.2 THE WORKS OF PDLG HAS NOT FOLLOWED THE PRINCIPLE OF FAIR USE, AS IT
POTENTIALLY AFFECTED THE MARKET OF THE BOOKS OF AUTHOR.….…13

3. WHETHER PUBLIC DIGITAL LIBRARY OF GOLMALAND INFRINGED THE

COPYRIGHT OF THE AUTHORS?
3.1 AUTHORS RIGHTS WERE VIOLATED BY UPLOADING COMPLETE WORK OF THE
AUTHORS BY SCANNING AND UPLOADING THEM...…………………………..15
3.2 THERE WAS NEITHER LICENSE OF COPYRIGHT GIVEN NOR ASSIGNMENT OF
COPYRIGHT GIVEN TO THE PDLG………...………….……………………………17

PRAYER……………………………………………………………………………………19

LIST OF ABBREVIATIONS

MEMORANDUM ON BEHALF OF APPEALANT PAGE 2

 1. AIR- All India Reporter

2. &- And

3. AP- Andhra Pradesh

4. Edn.- Edition

5. L.R.- Law Report

6. CO.- Company

7. AC- Appellate Cases

8. ER- England Reporter

9. SC- Supreme Court

10. SCC- Supreme Court Cases

11. V- Versus

12. Ltd.- Limited

13. Pvt.- Private

14. Del- Delhi

INDEX OF AUTHORITIES

MEMORANDUM ON BEHALF OF APPEALANT PAGE 3

Table of Cases
1. Haryana State Industrial Corporation v. Cork Mfg. Co., (2007) 8 S.C.C. 120
2. Hubbard v Vosper (1972) 2 Q.B. 84
3. Blackwood and Sons Ltd and Othrs v AN Parasuraman and Ors, AIR 1959 Mad 410
4. SK Dutt v Law Book Co and Ors AIR 1954 All 570 Para 12
5. ESPN Stars Sports v Global Broadcast News Ltd. and Ors, 2008 (36) PTC 492
6. Rupendra Kashyap v Jiwan Publishing House, 1996 (38) DRJ 81 Para 21.
7. Entertainment Network (India) Ltd v Super Cassettes Industries AIR 2004 Delhi 326,
112 (2004) DLT 549.
8. Amarnath Sehgal v Union of India2005 (30) PTC 253 (DEL
9. Brooke Bond India Limited vs Balaji Tea (India) Pvt. Ltd.25 November, 1992
10. S Pvr Pictures Ltd. vs Studio189 July, 2009
11. Bry Air India (P) Ltd. and anr. Vs. Western Engineering Co. 78(1999)DLT659
12. Harper & Row v Nation Enterprises 471 US 539 (1985

Books and Articles

1. David Vaver, Canada's intellectual property framework: A comparative overview,

Intellectual Property Journal,

2. Law relating to Intellectual Property, by Dr. B.L. Wadehra, fifth edition 2011, Universal
Law Publishing.

3. Cases and Materials on Intellectual Property, William Cornish, fourth edition, 2003,
Sweet & Maxwell Publication.

Statute
1. The Constitution of India, 1950
2. The Copyright Act, 1957

STATEMENT OF JURISDICTION
MEMORANDUM ON BEHALF OF APPEALANT PAGE 4
THE PETITIONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE
SUPREME COURT OF GOLMALAND, THE MEMORANDUM FOR THE
APPELLANTS UNDER ART. 1361 (SPECIAL LEAVE PETITION) OF THE INDIAN
CONSTITUTION IN THE INSTANT MATTER OF
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND
ARGUMENTS.

STATEMENT OF FACTS

1
Special Leave to appeal by the Supreme Court -
1. Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India.
2. Nothing in this clause (1) shall apply to any judgment, determination, sentence, or order passed or made by
any court or tribunal constituted by or under any law relating to the armed forces.

MEMORANDUM ON BEHALF OF APPEALANT PAGE 5

1. Authors’ Association of Golmaland (hereinafter AAG) is a copyright society registered under
the Copyright Act, 1960. AAG works for the interest of the writers, to protect their livelihood
and their right to authorship. It also issues licenses for and on behalf of its members. Further,
AAG espouses free speech and ensures fair compensation practices in the fast changing
landscape of knowledge dissemination.

2. Mr. Mathew Varghese, a renowned mathematician and book-writer, came across the news of
the digital library. The key features of the project are as under:
 All books, journals, periodicals kept in the public funded universities and public libraries
of Golmaland will be digitized. Then such digitized versions of the books, journals, and
periodicals will be uploaded to a dedicated internal server of the concerned University or
the public library (as the case may be). The internal server will be appropriately linked to
the PDLG so that materials could be accessed through links available at PDLG website.
 PDLG website will be harboured and maintained by Gorakhdhandha Vishwavidyalaya
(GDV). PDLG will give access to all digitized materials of GDV’s own library and such
materials will be available in downloadable formats. PDLG website will also provide
links to digitized materials of all other public funded universities and public libraries and
following the link, a library user can download the materials.
3. For accessing PDLG, a user is required to sign up, register, create an account by divulging
his/her credentials, and agree with an end-user agreement – given in a click wrap format. The
PDLG website contains the following disclaimer:
4. “A user of this website shall exercise due diligence to verify and ascertain which of the
contents (i) are proprietary and as such protected by copyright or (ii) have fallen in public
domain, or (iii) are orphan works whose owners could not be traced, and GDV shall have no
duty or obligation to provide the user with any information or advice in this regard.
5. As a user you understand, acknowledge, accept and agree that for providing this PDLG
Service, GDV, either had taken third party content-owner’s permission or in good faith
believes that providing of such content to be fair use and fair dealing. As a user you
understand, acknowledge, accept and agree that GDV is acting in the capacity of a non-profit
intermediary and at any point of time if any of the third party content-owners raise objection

MEMORANDUM ON BEHALF OF APPEALANT PAGE 6

 about the use of their Content or GDV, at its own, believes providing of any such contents to
be unlawful, GDV may at its sole discretion forthwith remove such contents.”
6. He was surprised to find that all his 20 books are available for free download at PDLG. Mr.
Varghese’s publisher informed him that the sale of his books has been drastically reduced in
the quarter that ended on March 31, 2015. Mr. Varghese being a member took up the matter
to Authors’ Association of Golmaland (hereinafter AAG). In the meantime, several other
authors have also complained to AAG.
7. AAG sent a cease and desist notice to GoG and GDV, stating that PDLG project was clear
violation of copyright of the members of AAG. Further, it also threatened to sue GoG and
GDV if such activities were not stopped forthwith. GoG and GDV responded to the notice
stating that PDLG related activities were fair dealing. Aggrieved by GoG and GDV’s fair
dealing assertion, AAG, in a representative capacity, filed a suit for injunction, damages and
accounts at the High Court at Asamtanagar impleading GoG and GDV as defendants.
8. The single judge bench of the High Court at Asamtanagar held that GoG and GDV through
PDLG service and connected activities have infringed the copyright of several members of
AAG in their respective works and decreed the suit.

9. AAG being aggrieved and dissatisfied with outcome of the appealunder Clause 15 of the
Letters Patent before the High Court at Asamtanagar, A division bench of the High Court at
Asamtanagar held that PDLG service and connected activities are fair dealing and allowed
the appeal filed by GoG and GDV, filled a special leave petition before the Supreme Court of
Golmaland. The petition was admitted by the apex Court.
10. The case has come up before the Apex Court for final hearing.

MEMORANDUM ON BEHALF OF APPEALANT PAGE 7

 ISSUES RAISED

1. WHETHER THE SPECIAL LEAVE PETITION FILED BY PETITIONER IS

MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT?

2. WHETHER THE ACTIVITIES OF PUBLIC DIGITAL LIBRARY OF

GOLMALAND COMES UNDER THE DOCTRINE OF FAIR DEALING?

3. WHETHER PUBLIC DIGITAL LIBRARY OF GOLMALAND INFRINGED THE

COPYRIGHT OF THE AUTHORS?

MEMORANDUM ON BEHALF OF APPEALANT PAGE 8

 SUMMARY OF ARGUMENTS

1. WEATHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?

The counsel humbly submits that the appeal filed under Art.136 2 of the Indian constitution is
maintainable. This article confers on the Hon’ble Court in the widest possible terms, a Plenary
Jurisdiction exercisable outside the purview of ordinary jurisdiction to meet the pressing
demands of justice. It is contended that the jurisdiction of Supreme Court under Art.136 can
always be invoked when a question of law of general public importance arises and even a
question of fact can also be a subject matter of judicial review under Art.136 3. The article confers
residuary power on SC to do justice where the court is satisfied that there is substantial injustice
2. WHETHER THE ACTIVITIES OF PUBLIC DIGITAL LIBRARY OF
GOLMALAND COMES UNDER THE DOCTRINE OF FAIR DEALING?
It is humbly submitted before the Hon`ble Supreme Court that the activities of Public Digital
Library of Golmaland (hereinafter PDLG) does not comes under the doctrine of Fair Dealing,
Thus the things done by them has infringed the copyright of the authors. The term “fair dealing”
has not been defined in the Copyright Act. It is a legal doctrine, which allows a person to make
limited use of copyrighted work without the permission of the owner. However it only allows
copying a substantially amount, it does not allow copying the whole work of the author. And
while doing its work PDLG has gone beyond the limits of defense of Fair Dealing.
3. WHETHER PUBLIC DIGITAL LIBRARY OF GOLMALAND INFRINGED THE
COPYRIGHT OF THE AUTHORS?
It is humbly submitted before the Hon`ble Supreme Court that the activities of PDLG the work
of scanning and uploading over 2, 00,000 books and journals of Gorakhdhandha
Vishwavidyalaya (hereinafter GDV)’s library has defiantly infringed the copyright of the
authors, therefore there has been a copyright infringement and A copyright society can sue for
infringement to enforce the rights of its members.

ARGUMENT ADVANCED
2
Supra note 1
3
id

MEMORANDUM ON BEHALF OF APPEALANT PAGE 9

 1. WEATHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?
The counsel humbly submits that the appeal filed under Art.136 4of the Indian constitution is
maintainable. This article confers on the Hon’ble Court in the widest possible terms, a Plenary
Jurisdiction exercisable outside the purview of ordinary jurisdiction to meet the pressing
demands of justice. It is contended that the jurisdiction of Supreme Court under Art.136 can
always be invoked when a question of law of general public importance arises and even a
question of fact can also be a subject matter of judicial review under Art.136 5. The article confers
residuary power on SC to do justice where the court is satisfied that there is substantial injustice.
In the present case there has been grave injustice caused to the appellants as their works were
published in masses that caused them economical loss while infringing their right to copyright
Under this article, Supreme Court shall have the power to grant special leave to appeal6:

a. from any judgement, decree, determination, sentence or order;

b. in any cause or matter;
c. Passed or made by any court or tribunal in the territory of India.

1.1 THERE IS SUBSTANTIAL QUESTION OF LAW

The counsel humbly submits that in the present case the ‘substantial’ question of laws are
involved. A finding of facts may give rise to a substantial question of law, and therefore, the SC
is not precluded from going into the question of facts.Even if we assume that the case doesn’t
involve ‘substantial’ question of law, SC in the exercise of its power conferred under Art.136 can
entertain the present appeal. Art. 136 of the Indian Constitution use the wording ‘in any cause or
matter’7. This gives widest power to this Hon’ble court to deal with any cause or matter, even if
it involves question of fact. The jurisdiction conferred upon the Supreme Court is corrective one
and not a restrictive one8.

4
Supra note 1
5
id
6 th
5 Vol. Durga Das Basu, Commentaries on the Constitution of India, (8th Edition, 2009)
7
Supra note 1
8
Haryana State Industrial Corporation v. Cork Mfg. Co., (2007) 8 S.C.C. 120

MEMORANDUM ON BEHALF OF APPEALANT PAGE 10

 1.2 THERE IS INFRINGEMENT OF COPYRIGHT
The counsel humbly submits that in the present case there is infringement of copyright, PDLG
project was clear violation of copyright of the members of AAG.

The counsel further contends that Art.136 of the Indian Constitution is the residuary power of SC
to do justice where the court is satisfied that there is injustice. Thus, considering all the above
authorities, it is humbly submitted before this Hon’ble court that in the present case there is
substantive and grave injustice caused to the petitioner and hence, the appeal is maintainable
under Art.1369 of the Indian Constitution.

2. WHETHER THE ACTIVITIES OF PUBLIC DIGITAL LIBRARY OF

GOLMALAND COMES UNDER THE DOCTRINE OF FAIR DEALING?

It is humbly submitted before the Hon`ble Supreme Court that the activities of PDLG does not
comes under the doctrine of Fair Dealing, Thus the work of scanning and uploading over 2,
00,000 books and journals of Gorakhdhandha Vishwavidyalaya (hereinafter GDV)’s library has
defiantly infringed the copyright of the authors. Fair dealing is a limitation and exception to the
exclusive right granted by copyright law to the author of a creative work. The PDLG related
activities of Government of Golmaland (hereinafter GoG) and GDV is not Fair dealing because,
Firstly, the PDLG has completely copied the work of Authors instead of using a substantial
portion. [2.1] Secondly, the works of PDLG has not followed the principle of Fair Use, as it
Potentially Affected the market of the books of Authors.[2.2]

2.1 THE PDLG HAS COMPLETELY COPIED THE WORK OF AUTHORS

INSTEAD OF USING A SUBSTANTIAL PORTION.

The Copyright Act does not define fair dealing; the Indian courts have heavily referred to the
English authority of Hubbard v Vosper10 which contained the oft-quoted definition of fair
dealing by Lord Denning:

9
Supra note 1
10
(1972) 2 Q.B. 84

MEMORANDUM ON BEHALF OF APPEALANT PAGE 11

 ‘It is impossible to define what is ‘fair dealing.’ It must be a question of degree.
You must consider first the number and extent of the quotations and extracts…..Then you must
consider the use made of them…….Next, you must consider the proportions…...Other
considerations may come to mind also.

But, after all is said and done, it must be a matter of impression. Also, the enumerated purposes
under Section 52 have been typically interpreted as exhaustive, inflexible and certain, since any
use not falling strictly within an enumerated ground is considered an infringement 11. The
Amount and Substantiality of the Dealing is the first factor used in relation to the copyrighted
work as a whole12. In order to be an infringement of a man's copyright there must be a
'substantial infringement' of the work13. Its logic is plain: the larger the taking, the less fair the
dealing.

The Court further held that where the same idea is being developed in a different manner, it is
manifest that the source being common, similarities are bound to occur and therefore 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 work14.

In other words, in order to be actionable the copy must be a substantial and material reproduction
of expression and not merely of an idea. However, the issue of substantiality is the subject of two
different concerns. First, there is no copyright infringement unless there is substantial taking.
Second, once there is prima facie copyright infringement, whether a use is fair is partly
determined by the substantiality of the taking as one of the factors15.

Indian courts have applied both quantitative and qualitative test of substantiality and the literal
number of words copied has not been held to be a determinative factor 16. The courts have
recognized that the permissible quantum of extracts or quotations will depend upon the facts of
each case17. In Blackwood case, which involved the reproduction of the work in the form of

11
Blackwood and Sons Ltd and Othrs v AN Parasuraman and Ors, AIR 1959 Mad 410
12
Section 107(3) of the US Copyright Statute
13
SK Dutt v Law Book Co and Ors AIR 1954 All 570 Para 12
14
[1979] 1 SCR 218 Para 52
15
58 (1995) 677-724.
16
Blackwood Case, AIR 1959 Mad 410 Para 71
17
ESPN Stars Sports v Global Broadcast News Ltd. and Ors, 2008 (36) PTC 492

MEMORANDUM ON BEHALF OF APPEALANT PAGE 12

guides, the court rightfully held that the alleged infringer’s intention is an important but not a
decisive factor in determining whether the work in question was copied so substantially that the
copying would amount to negative ‘fairness’.

The Court took a peculiar stand in SK Dutt v Law Book Co and Ors, where the dispute was
based on the use of certain quotations from a work. The Court interpreted the fact of
acknowledgement by the authors of the plaintiff's material to mean that had the authors made any
other use of the plaintiff's book in compiling their own book, they would have acknowledged it;
thus, the copying was held not to be a substantial taking18.

The fair dealing is a defence to the person conducting research or private study who while doing
so, if dealing fairly with a literary work, may not incur wrath of the copyright having been
infringed. But, if a publisher publishes a book for commercial exploitation and in doing so
infringes a Copyright, the defence under Section 52((1))((a))((ii)) would not be available to such
a publisher though the book published by him may be used or be meant for use in research or
private study19. Dealing with a work for private study must not involve any publication. Private
study covers the case of a student copying out a book for his own use and not the circulation of
copies among other students20.

2.2 THE WORKS OF PDLG HAS NOT FOLLOWED THE PRINCIPLE OF

FAIR USE, AS IT POTENTIALLY AFFECTED THE MARKET OF THE
BOOKS OF AUTHORS

In the present case the sale of the books of Authors has been drastically reduced in the quarter,
after the incoming of the PDLG, the Section 52 of the Indian Copyright Act also sets out in an
exhaustive list various purposes that fall under the domain of fair dealing. If the purpose of the
reproduction is not one of those enumerated in the statute the question of fair dealing would not
arise21. The major purposes which the act enumerates are: private study, research, criticism,
review22.

18
AIR 1954 All 570 Para 45
19
Rupendra Kashyap v Jiwan Publishing House, 1996 (38) DRJ 81 Para 21.
20
1989 (9) PTC 137
21
Blackwood Case, AIR 1959 Mad 410 Para 84
22
AIR 1959 Mad 410 Para 86

MEMORANDUM ON BEHALF OF APPEALANT PAGE 13

The possibility of competition is all that is necessary for determining infringement of a
copyright. In ESPN Stars Sports the Court endorsed the ‘likelihood of competition’ and held that
if the work is being used to convey the same information as the author, for a rival purpose, it
may be unfair23. Effect of the publication as a competitor with the plaintiff's copyright work is
also one of the aspects sometimes taken into account by the Indian courts for ascertaining
whether the reproduction is substantial24.

It is important to note that the courts may also rely on public-interest purposes for allowing an
otherwise infringing activity, but this common law power has been rarely exercised in India or in
the UK, where it was invented25. In Rupendra Kashyap v Jiwan Publishing House, where the
defendant was involved in publishing question papers of the CBSE's examinations, to which, the
plaintiff contended to hold an exclusive license, the Court has very explicitly held that ‘the law
as to copyright in India is governed by a statute which does not provide for defence in the name
of public interest. An infringement of copyright cannot be permitted merely because it is claimed
to be in public interest to infringe a copyright26.

In Harper & Row v Nation Enterprises, the US Supreme Court applied much emphasis on the
implication of the defendant's use on the potential market of the copyrighted work27.

3. WHETHER PUBLIC DIGITAL LIBRARY OF GOLMALAND INFRINGED

THE COPYRIGHT OF THE AUTHORS?
It is humbly submitted before the Hon`ble Supreme Court that the activities of PDLG the work
of scanning and uploading over 2, 00,000 books and journals of Gorakhdhandha
Vishwavidyalaya (hereinafter GDV)’s library has defiantly infringed the copyright of the
authors, therefore there has been a copyright infringement and A copyright society can sue for
infringement to enforce the rights of its members.
The Supreme Court has stated that a copyright society, for all intents and purposes, steps into the
shoes of the author Entertainment Network (India) Ltd v Super Cassettes Industries28.
23
ESPN Stars Sports v Global Broadcast News Ltd and Ors, 2008 (36) PTC 492 (Del) Para 17
24
Blackwood Case
25
David Vaver, Canada's intellectual property framework: Acomparative overview, Intellectual Property Journal,
17(2004) 125-149.
26
1996 (38) DRJ 81 Para 24.
27
471 US 539 (1985)
28
AIR 2004 Delhi 326, 112 (2004) DLT 549

MEMORANDUM ON BEHALF OF APPEALANT PAGE 14

Thus Author’s Association of Golmaland as the authors can sue on infringement.
Asfirstly authors right were violatedby uploading complete work of the authors by scanning and
uploading them[3.1]and secondly there was neither license of copyright given nor assignment of
copyright given to the PDLG.[3.2]

3.1 AUTHORS RIGHTS WERE VIOLATED BY UPLOADING COMPLETE

WORK OF THE AUTHORS BY SCANNING AND UPLOADING THEM
Authors have certain "special" rights (otherwise known as moral rights), that are inalienable
(unaffected by assignment of copyright to a third party) and perpetual (section 57, Copyright
Act). Consequently, every author of a work has the rights.
In addition to the statute, moral rights have also been recognised and enforced by Indian courts
Amarnath Sehgal v Union of India,29

It was held that when an author creates a work of art or a literary work, it results in the creation
of following rights:

a) Paternity Right/ Identification Right/Attribution Right, i.e., his right to have his name on
the work of art or literary work;
b) Divulgation Right/ Dissemination Right, i.e., his economic right to sell the work for a
valuable consideration;
c) Moral Right of Integrity, i.e., his right to object to such treatment of his work which is
derogatory to his reputation; and
d) Right of Retraction, i.e., his right to withdraw his work from publication, if he feels that
due to passage of time and changed opinion it is advisable to withdraw the work
In the instant case the rights of the authors are violated by copying the authors books and
publishing them causing downfall in sale of his books.Section 13 of the Copyright Act protects
the following types of original works:
 Literary works (including software, the source code of which falls under this
definition, books, articles and poems).
 Dramatic works (such as scripts and choreographed routines).
29
2005 (30) PTC 253 (DEL

MEMORANDUM ON BEHALF OF APPEALANT PAGE 15

  Musical works (songs and compositions).
 Artistic works (drawings, photographs, paintings and sculptures).
 Sound recordings.
 Cinematograph films.
It is not necessary for the author of a particular work to be a citizen of India. The relevant
criterion for copyrightability of a work is its originality.
Furthermore Section 51 of the Copyright Act provides an exhaustive list of activities that
constitute infringement of copyright. The statute does not specify a distinction between primary
and secondary infringement per se. However, the provisions suggest that the following acts can
be categorised as primary infringement:
 Any act that is the sole and exclusive prerogative of the copyright holder (or its licensee),
under the provisions of section 14 of the Copyright Act.
 Making infringing copies (reproducing copyrighted work) with the intention to sell, make
available for sale, publicly display or offer to sell the infringing copies.
 Distributing infringing copies of a work for trading purposes. Also, distributing
infringing copies in a way that prejudices the copyright holder.
 Exhibiting infringing copies of work protected by copyright to the public.
 Importing infringing copies into India, excluding copies used for private and domestic
use.
The statutory basis for secondary infringement can be found in section 51(1)(a)(ii) of the
Copyright Act. It stipulates that the act of permitting one's "place" (either place of business or of
residence or any other venue, either digital or in the physical world) to be used for
communicating infringing work to the public with a view to profiting from it constitutes
infringement of copyright.
It was held in Brooke Bond India Limited vs Balaji Tea (India) Pvt. Ltd.25 November,
199230 The word 'exclusive' in the definition of copyright in Section Vindicates that the owner of
the copyright alone has the sole right and further he has the right to exclude all others from
reproducing his work without his permission. If anybody else does any of the acts mentioned
in Section 14 without the authority of the owner of the copyright, the owner of the copyright can

30
(1993) 2 MLJ 132

MEMORANDUM ON BEHALF OF APPEALANT PAGE 16

maintain an action for infringement of his copyright against the wrong doer. This exclusive right
is intended to prevent the appropriation of an author's labour, skill and capital by another.
This provision has also been used to initiate infringement actions against entities that provide
platforms on the internet that host infringing content.
It can be noted from the statuatory provisions that there has been an infringement of copyright
and an infringement of copyright of the Copyright act is actionable by the copyright owner.

3.2 THERE WAS NEITHER LICENSE OF COPYRIGHT GIVEN NOR

ASSIGNMENT OF COPYRIGHT GIVEN TO THE PDLG.
The owner of the copyrights of any work may grant a license under the Copyright law to
authorize a third party to use and distribute the copyrighted work. A copyright license may be
exclusive or nonexclusive.

The term Exclusive License is defined in section 2(j) of the Copyright Act to mean and include
a license which confers on the licensee and the persons authorized by him, to the exclusion of
all other persons, any right comprised in the copyright of a work.

But no such license or assignment was given by the authors therefore it is clear infringement of
the copyright by the PDLG, same as in M/S Pvr Pictures Ltd. vs Studio1831
Studio 18 urged that PVR cannot seek the reliefs claimed in this case, because of Section 14 of
the SR Act. It is submitted that besides, there being no valid license, under Section 30 of
the Copyright Act, the PVR cannot enjoin Studio 18, which is entitled to all rights in law, being
the intellectual property right owner of the copyright in the film.
Section 18 in the Copyright Act, 1957- Assignment of copyright.—

1. The owner of the copyright in an existing work or the prospective owner of the copyright
in a future work may assign to any person the copyright either wholly or partially and
either generally or subject to limitations and either for the whole of the copyright or any
part thereof: Provided that in the case of the assignment of copyright in any future work,
the assignment shall take effect only when the work comes into existence.

31
9 July, 2009

MEMORANDUM ON BEHALF OF APPEALANT PAGE 17

 2. Where the assignee of a copyright becomes entitled to any right comprised in the
copyright, the assignee as respects the rights so assigned, and the assignor as respects the
rights not assigned, shall be treated for the purposes of this Act as the owner of copyright
and the provisions of this Act shall have effect accordingly.
3. In this section, the expression “assignee” as respects the assignment of the copyright in
any future work includes the legal representatives of the assignee, if the assignee dies
before the work comes into existence.

In Bry Air India (P) Ltd. and anr. Vs. Western Engineering Co. 32Sections 18 and 19 of
the copyright act provide the procedure relating to assignment, transmission or relinquishment
of copyright. the owner of a copyright in an existing work may assign ..... copyright of the
drawings of the dehumidifiers in issue are owned by m/s. bry air inc., USA, but, no statement has
been made that there was any assignment deed in ..... in writing to any person.

Similarly there was no assignment of copyright by the petitioner in the instant case.

32
78(1999)DLT659

MEMORANDUM ON BEHALF OF APPEALANT PAGE 18

 PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon‟ble Supreme Court to adjudge and declare that:

 PDLG’s activities are compelete infringement of copyright and hence a permanent

injunction to be ordered and the appropriate compensation should be awarded to the
respective aggrieved authors.
 Any other order as it deems fit in the interest of equity, justice and good conscience. For
This Act of Kindness, the respondent Shall Duty Bound Forever Pray.

And for this act of kindness by your lordship, the respondent shall be duty bound ever pray.

Sd-
COUNSEL FOR PETETIONER

MEMORANDUM ON BEHALF OF APPEALANT PAGE 19