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

contact@manupatra.com 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 contact@manupatra.com 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.