Holding

The Supreme Court held that copyright in the performance of a dance is a dramatic work, not a literary work, and that the respondent's copyright in the seven Prasangas is valid; the appellant’s infringement cannot be justified except under the specific exemptions of Section 52, and the appeal is dismissed.

Summary

Dr. Karanth, a noted cultural figure, created a new form of Yakshagana ballet called Yaksharanga, comprising seven Prasangas, and bequeathed the copyright in these works to Malini Mallya by a will. The Academy of General Education performed the ballets without obtaining permission, leading the trial court to grant a permanent injunction against the Academy. The Karnataka High Court modified the injunction, suggesting the Academy could rely on certain exemptions under Section 52 of the Copyright Act, 1957. On appeal, the Supreme Court held that the performance of a dance is a "dramatic work" distinct from a "literary work" and that the respondent validly holds copyright in the seven Prasangas under the residuary clause of the will. While the appeal was dismissed, the Court modified the injunction to reflect that performances by an educational institution for a non‑paying audience may fall within the fair‑dealing exemptions of Section 52(1)(a) and (i).

Issues considered

Whether Dr. Karanth acquired copyright in the seven Yakshagana Prasangas and the associated dramatic form.
Whether the copyright vested in the respondent under the will dated 18‑06‑1994.
Whether the appellant infringed the respondent's copyright by performing the ballets.
Whether a dramatic work is subsumed within the definition of literary work for purposes of the Copyright Act.
Whether the appellant, as an educational institution, can rely on the exemptions under Section 52(1)(a) and (i) of the Copyright Act.

Legislation cited

Copyright Act, 1957s. 13, s. 17, s. 22, s. 23, s. 2(c), s. 2(d), s. 2(ff), s. 2(ffa), s. 2(h), s. 2(o), s. 2(y), s. 52(1)(a), s. 52(1)(i), s. 52(1)(l)

Subjects

copyrightdramatic workliterary workYakshaganainjunctioneducational institutionfair dealingSection 52willresiduary legatee

Judgment

(2009) 1 S.C.R. 615

ACADEMY OF GENERAL EDU., MANIPAL & ANR. A
~
v.
8. MALIN! MALLYA
(Civil Appeal No. 389 of 2008)
JANUARY 23, 2009
B
[S.B. SINHA, LOKESHWAR SINGH PANTA AND B.
SUDERSHAN REDDY, JJ.]

-
t

COPYRIGHT ACT, 1957:
c
ss. 2(y) and 52(1)(a)(i}, (i) and (I)- "work"- 'dramatic work'
- Suit claiming damages for copyright in respect of

-...
'Prasangas' of 'Yaksharanga' Ballet evolved from traditional
'Yakshagana' - HELD: Copyright in respect of performance
of dance would not come within the purview of literary work but D
would come within the purview of definition of 'dramatic work'
- Defendant would be entitled to benefit of the provisions
contained in clauses (a) and (i) of s.52(1).

The respondent claiming copyright through a Will
over seven 'Prasangas' of Yaksharanga Ballet, namely, (i) E
Bhishma Vijaya; (ii) Nala Damayanthi; (iii) Kanakangi (iv)
,- Abhimanyu Vadha; (v} Chitrangadha; (vi) Panchavati; and
(vii) Ganga Charitha, evolved from 'Yakshagana' by the
testator of the Will, filed a suit for damages against the
appellant-Academy for violation of her copyright. The trial F
court granted the injunction restraining the defendant or
their employees or agents from performing the said
Ballets/Prasangs in any manner as were evolved
distinctively by the testator. On appeal, the High Court
modified the restraint order to the effect, if the appellants G
desired to stage any of the described Ballets in the
... manner and form as conceived in all respects, namely,
costumes, choreography and direction by the testator,
they could do so only in accordance with the provisions
615 H
616 SUPREME COURT REPORTS [2009] 1 S.C.R.

A of the Copyright Act, 1957. ,...
In the instant appeal filed by the Academy, it was
primarily contended that the High Court was not correct
in holding that dramatic work for the purpose of
copyright was a part of the literary work, as they connote
B
two different things. It was submitted that the appellant
being an educational institution organised the Ballet for
non-paying audience; and that the injunction granted in
~
favour of the plaintiff was not in terms of the provisions
....
c of the Copyright Act, 1957 as the appellant was entitled
to the benefit of s.52(1)(i) of the Act.

Dismissing the appeal, but modifying the injunction
order, the Court
•
D HELD: 1.1. Broadly speaking, a dramatic work may
also come within the purview of literary work being a part ,...
of dramatic literature. However, the provisions of the
Copyright Act, 1957 make a distinction between the
'literary work' and 'dramatic work'. Keeping in view the
statutory provisions, there cannot be any doubt
E
whatsoever that copyright in respect of performance of
'dance' would not come within the purview of the literary
work but would come within the purview of the definition -.
of 'dramatic work'. [Para 14] [630-C-E]
F Encyclopaedia Britannica (Vol-IV) 15th Edition, referred
to.

1.2 Indisputably, in view of the submissions made at
the bar, the defendant-respondent had acquired
G copyright in respect of seven Yakshagana Prasangas as
also in respect of Yakshagana dramatic or theatrical form
as a residuary legatee in terms of clause 12 of the Will. '1- -
[Para 13] [628-E-F]

2.1. Decree of injunction is an equitable relief. The
H
ACADEMY OF GENERAL EDU., MANI PAL & ANR. v. B. 617
MALINI MALLYA

court while passing a decree for permanent injunction A
would avoid multiplicity of proceedings, and is obliged
to consider the statutory provisions governing the same.
The High Court should have clarified that the appellants
can also take the statutory benefit of the provisions
contained in clauses (a), (i) and (I) of sub-section (1) of B
Section 52 of the Act. [Para 18 and 20] [631-G; 634-E-F]
~ 2.2. Section 52 of the Act provides for certain acts

- which would not constitute an infringement of copyright.
When a fair dealing is made, inter alia, of a literary or
dramatic work for the purpose of private use including
c
research and criticism or review, whether of that work or

- ~-·
of any other work, the right in terms of the provisions of
the said Act cannot be claimed. Thus, if some
performance or dance is carried out within the purview
of the said clause, the order of injunction shall not be D
applicable. Similarly, appellant being an educational
institution, if the dance is performed within the meaning
of provisions of clause (i) of sub-s. (1) of s. 52 of the Act
strictly, the order of injunction shall not apply thereto also.
Yet again, if such performance is conducted before a non- E
paying audience by the appellant, which is an institution
if it comes within the purview of amateur club or society,
the same would not constitute any violation of the said
order of injunction. [Para 20] [634-F-H; 635-A-B]
F
R.G. Anand vs. Mis Delux Films & Ors. (1978) 4 SCC
118 and Eastern Book Company & Ors. Vs. 0.8. Modak &
Anr. (2008) 1 SCC 1, referred to.

Case Law Reference:
G
(1978) 4 sec 118 referred to para 19
~

(2008) 1 sec 1 referred to para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 389
H
618 SUPREME COURT REPORTS [2009] 1 S.C.R.

A of 2009.

From the Judgment and Order dated 05.12.2007 of the
High Court of Karnataka at Banglore in R.F.A. No. 271 of 2008.

Dr. Rajiv Dhavan, Udita Singh, Lakshmi Raman Singh and
8 Pallavi Mohan for the Appellant.

G.V. Chandrashekhar, N.K. Verma and Anjana

C
Chandrashekhar for the respondents.

The Judgment of the Court was delivered by -
5.8. SINHA, J.1. Leave granted.

2.'Yakshagana' is a form of ballet dance. It has its own
heritage. Indisputably, Dr. Kota Shivarama Karanth (for short,
D "Dr. Karanth"), a Jnanapeeth awardee, who was a Novelist,
Play Writer, Essayist, Encyclopediationist, Cultural
Anthropologist, Artist, Writer of Science, Environmentalist. He
developed a new form of 'Yakshagana'. He was a Director of
the appellant - institute. On or about 18.6.1994, he executed a
E Will in favour of the respondent. Dr. Karanth expired on
9.12.1997. Yakshagana Ballet dance as developed by Dr.
Karanth was performed in New Delhi on or about 18.9.2001.
Respondent filed a suit for declaration, injunction and damages
alleging violation of the copyright in respect of the said dance
F vested in her in terms of the said Will stating that Dr. Karanth
developed a new distinctive dance, drama troop or theatrical
system which was named by him as 'Yaksha Ranga' which in
his own words mean "creative extension of traditional
Yakshagana" and, thus, the appellants infringed the copyright
G thereof by performing the same at New Delhi without obtaining
her prior permission. It was stated that Dr. Karanth had
composed seven verses or prasangas for staging Yaksharanga 'J-.
Ballet apart from bringing in changes in the traditional form
thereof on its relevant aspects, namely, Raga, Tala, Scenic
arrangement, Costumes etc. These prasangas are: (i) Bhishma
H Vijaya; (ii) Nala Damayanthi; (iii) Kanakangi or Kanakangi
ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. 8. 619
MALINI MALLYA [S.B. SINHA, J.]

Kalyana; (iv) Abhimanyu or Abhimanyu Vada; (v) Chitrangadha A
or Babruvahana Kalaga; (vi) Panchavati; and (vii) Ganga
Charitha.

3. Plaintiff - respondent admittedly claimed copyright in
respect of 'literary and artistic works' in her favour in terms of
B
clauses 11 and 12 of the said Will dated 18.6.1994, which read
as under:
y
"11. Since I left the house 'suhasa' I have been living in a

- specially 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
c
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 D
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
had been quite serious, enfeebling me for long period. In
recognition of her devotion and sincere affection towards E
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, "Hunchu Mansina
-'t· Hathu Mukhagalu" 1991 Edition. In my opinion, very long
enduring and a signal service she has done to me and to
F
my literary works is, in writing a bibliography of all my
books- a highly meritorious and scholarly work involving so
much of pains taking 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 G
_..... 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
H
620 SUPREME COURT REPORTS [2009] 1 S. C.R.

A 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
B 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 ....

c
have any right or claims for the same.

12. From time to time I have distributed among my children
all gold and silver jewels and ornaments and other
-
valuables, which were gifted to me by my friends and

D
admirers. And I have distributed all copper and bronze
vessels and utensils among my children while leaving my
former home "Suhasa" keeping only bare essential and
necessary things and articles. Whatever movable
-+-
-
properties, books, fittings, furniture, utensils etc. belonging
to me into this house · Manasa' and my Car and cash
money in hand after my death shall go to Smt. Malini Malya
E only. No one else shall have any claim or right over the
same. Any outstanding due to me and Bank Deposits and
whatever assets or properties not mentioned above, that
is, residuary after my death shall belong to Smt. Malini
Mallya alone." .,._

F
4. Plaintiff- Respondent, inter alia, prayed for passing a
judgment and decree against the defendants - appellants
granting the following reliefs:

"1. A declaration that the plaintiff is the exclusive
G copyright holder in respect of Yaksharanga ballets,
namely, Bhishma Vijaya, Kanakangi, Nala
Damayanthi, Panchavati, Gaya Charitha,
Chitrangadha, Abhimanyu Vadha, and for
consequential permanent injunction restraining the
H Defendants, their agents, employees etc. from
ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. B. 621
MALINI MALLYA [S.B. SINHA, J.]

• -..( staging or performing any of the above said 7 A
ballets or Prasangas or any parts thereof.

1,000-00

2. Directing the Defendants to pay to the plaintiff
B
damages of Rs.15,000/- towards infringement of
her copyright on account ofm stating or performing
r Abhimanyu Vadha on 18-9-2001 at New Delhi.

F 15,000-00
c
3. Directing the Defendants to pay to the plaintiff
interest on Rs.15,000/- at 15% p.a. from 18-9-2001
till now which is

95-00
• 4. Directing the Defendants to pay future interest on
D

Rs.15,000/- at 15% p.a. till payment of the entire
amount.

5. ··································· E
II
6. ·····································
5. Appellants in their written statement, however, denied
and disputed any copyright of the said dance in Dr. Karanth
"' alleging that whatever work he had done was in the capacity F
of a Director of the Kendra with the assistance, finance and
staff provided by the Organization of Mahatma Gandhi
Memorial College Trust in respect whereof a Committee was
formed under him by the Board of Trustees. It was furthermore
contended that Dr. Karanth was appointed as the President of G
the Executive Committee of Yakshagana Kendra for a period
~
of three years by the appellant and while holding the said post
only he expired.

6. By reason of a judgment and decree dated 14.11.2003,
the District Judge, Udupi decreed the said suit declaring the H
622 SUPREME COURT REPORTS [2009] 1 S.C.R.

A plaintiff - respondent as a person having the exclusive Jo.- ,
copyright in respect of seven Prasangas and that she had
acquired the same by reason of a Will as a residuary legatee
and the defendants - appellants or their employees or agents
were restrained from performing the said seven ballets or
B Prasangas or any parts thereof in any manner as evolved
distinctively by Dr. Karanth.

7. Appellants aggrieved thereby and dissatisfied therewith
preferred an appeal before the Karnataka High Court which
was marked as R.F.A. No. 271 of 2004. By reason of the
C impugned judgment and order dated 5.12.2007, the said
appeal has been dismissed.

8. Appellants are, thus, before us.

D 9. Dr. Rajiv Dhavan, learned Senior Counsel appearing on
behalf of appellants in his usual fairness conceded:

i. The copyright in the literary work has been assigned
by reason of the said Will in favour of the
respondent in terms of clause 12 of the Will.
E
ii. Dr. Karanth has made substantial changes in the
original traditional form of the Yakshagana dance.
Additions made in the form of the said dance
including the Prasangas fell within the purview of
F 'originality' in respect whereof copyright could be
claimed.

It was, however, urged:

i. Keeping in view of the findings of the learned trial
G judge, it ought to have been held that no cause of
action arose against the appellants in this case as
the Institution had performed the said dance at New
Delhi in the memory of Dr. Karanth without charging
any fees.
H
ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. B. 623
MALINI MALLYA [S.B. SINHA, J.]

·""{
ii. The form of copyright as regards dramatic work as A
has been held by the High Court stating the same
to be a part of the literary work is not correct as they
connote two different things.

iii. The form of injunction granted in favour of the
B
plaintiff - respondent is not in terms of the
provisions of the Copyright Act, 1957 as the
r appellant as an institution or otherwise is entitled
to use the same in terms of clauses (a), (i) and (1)-
of sub-Section (1) of Section 52 thereof.
c
10. Mr. G.V. Chandrashekhar, learned counsel appearing
on behalf of the respondent, on the other hand, would support
the impugned judgment.

11. The Copyright Act, 1957 (for short, "the Act") was D
.y
enacted to amend and consolidate the law relating to copyright.

Section 2 is the interpretation section.

Section 2(c) defines 'artistic work' to mean (i) a painting,
a sculpture, a drawing (including a diagram, map, chart or plan), E
an engraving or a photograph, whether or not any such work
possesses artistic quality; (ii) a work of architecture; and (iii)
any other work of artistic craftsmanship.

The word 'author' is defined in Section 2(d) to mean, (i) in
F
relation to a literary or dramatic work, the author of the work;
(ii) in relation to a musical work, the composer; (iii) in relation
to an artistic work other than a photograph, the artist; (iv) in
relation to a photograph, the person taking the photograph; (v)
in relation to a cinematograph film or sound recording, the
G
producer; and (vi) in relation to any literary, dramatic, musical
..... or artistic work which is computer-generated, the person who
causes the work to be created.

The term "communication to the public" as defined in
Section 2(ff) reads as under: H
624 SUPREME COURT REPORTS (2009] 1 S.C.R.

A "(ff) "communication to the public" means making any work ')'
available for being seen or heard or otherwise enjoyed by
the public directly or by any means of display or diffusion
other than by issuing copies of such work regardless of
whether any member of the pubic actually sees, hears or
B otherwise enjoys the work so made available.

Explanation.- For the purposes of this clause,
communication through satellite or cable or any other -1
means of simultaneous communication to more than one
household or place of residence including residential
c rooms of any hotel or hostel shall be deemed to be
communication to the public"
•.
Section 2 (ffa) defines the word "composer", in relation to
a musical work, to mean the person who composes the music
D regardless of whether he records it in any form of graphical
-+
notation. Section 2(h) defines "dramatic work" to include any
piece of 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
E cinematograph film.

Section 2(o) defines "literary work" to include computer
programmes, tables and compilations including computer
databases. Section 2(qq) defines "performer" to include an
actor, singer, musician, dancer, acrobat, juggler, conjurer, snake
F charmer, a person delivering a lecture or any other person who
makes a performance.

Section 2(y) defines "work" to mean any of the following
works, namely:- (i) a literary, dramatic, musical or artistic work;
G (ii) a cinematograph film; (iii) a sound recording.

Section 13 which occurs in Chapter Ill of the Act provides
that subject to the provisions thereof and the other provisions
of the said Act, copyright shall subsists throughout India in the
following classes of works, that is to say,-
H
ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. B. 625
MALIN! MALLYA [S.B. SINHA, J.)

(a) original literary, dramatic, musical and artistic A
works;
(b) cinematograph films; and
(c) sound recording.
B
Section 17 of the Act deals with "First owner of copyright",
in terms whereof, subject to the provisions of the Act, the author
of a work shall be the owner of the copyright therein. Proviso
(d) appended thereto states that in the case of a Government
work, Government shall, in the absence of any agreement to C
the contrary, be the first owner of the copyright therein.
Sections 22, 23 and 52(1)(a), (i) and (I) of the Act, which
are relevant for our purpose read as under:
"22. Term of copyright in published literary, dramatic,
0
musical and artistic works.- Except as otherwise
hereinafter provided, copyright shall subsist in any literary,
dramatic, musical or artistic work (other than a photograph)
published within the life time of the author until fifty years
from the beginning of the calendar year following the year
in which the author dies. E
Explanation- In this section, the reference to the author shall
in the case of a work of joint authorship, be construed as
a reference to the author who dies last.
23 - Term of copyright in anonymous and F
pseudonymous works.- (1) In the case of a literary,
dramatic, musical or artistic work (other than a
photograph), which is published anonymously or
pseudonymously, copyright shall subsist until sixty years
from the beginning of the calendar year next following the G
year in which the work is first published:
Provided that where the identity of the author is
~ disclosed before the expiry of the said period, copyright
shall subsist until sixty years from the beginning of the
H
626 SUPREME COURT REPORTS [2009] 1 S.C.R.

A calendar year following the year in which the author dies.

(2) In sub-section (1 ), references to the author shall, in the
case of an anonymous work of joint authorship, be
construed, --
B (a) where the identity of the authors is disclosed, as
references to that author;

(b) where the identity of more authors than one is
disclosed, as references to the author who dies last
c from amongst such authors.

(3) In sub-section (1), references to the author shall, in the
case of a pseudonymous work of joint authorship, be
construed, --
D (a) where the names of one or more (but not all) .,.
of the authors arc pseudonymous and his or
their identity is not disclosed, as references
to the author whose name is not a
pseudonym, or, if the names of two or more
E of the authors are not pseudonyms, as
references to such of those authors who dies
last;

(b) where the names of one or more (but not all)
of the authors arc pseudonyms and the
F
identity of one or more of them is disclosed,
as references to the author who dies last from
amongst the authors whose names arc not
pseudonyms and the authors whose names
are pseudonyms and are disclosed; and
G
(c) where the names of all the authors arc
"-
pseudonyms and the identity of one of them
is disclosed, as references to the author
whose identity is disclosed or if the identity
H of two or more of such authors is disclosed,
ACADEMY OF GENERAL EDU., MANI PAL & ANR. v. 8. 627
MALINI MALLYA [S.B. SINHA, J.]

as references to such of those authors who A
dies last.

Explanation.--For the purposes of this section, the
identity of an author shall be deemed to have been
disclosed, if either the identity of the author is disclosed 8
publicly by both the author and the publisher or is otherwise
established to the satisfaction of the Copyright Board by
that author.

52. Certain acts not to be infringement of copyright.- (1)
The following acts shall not constitute an infringement of C
copyright, namely:-

(a) a fair dealing with a literary, dramatic, musical
or artistic work not being a computer programme
for the purpose of-- o
(i) Private use including research;

(ii) criticism or review, whether of that work or of any
other work;
E
xxx xxx xxx

(i) the performance, in the course of the activities
of an educational institution, of a literary, dramatic
or musical work by the staff and student of the
institution, or of a cinematograph film or a sound F
recording, ifthe audience is limited to such staff and
students, the parents and guardians of the students
and persons directly connected with the activities
of the institution or the communication to such an
audience of a cinematograph film or sound G
recording.

xxx xxx xxx
(I) the performance of a literary, dramatic or musical H
628 SUPREME COURT REPORTS (2009] 1 S.C.R.

A work by an amateur club or society, if the
performance is given to a non-paying audience, or
for the benefit of a religious institution."

12. Before adverting to the submissions made by the
8 learned counsel for the parties, we may notice the issues
framed in the suit, which are:

"i. Does plaintiff prove that late Dr. Shivaramaji
Karanth had acquired copyright in respect of seven
Yakshagana Prasangas and also in respect of
C Yakshagana dramatic or theatrical form i.e.,
Bhishma Vijaya, Nala Damayanthi, Kanakaangti or
Kanakangi Kalyana, Abhimanyu or Abhimanyu
Vadha, Chitrangadha or Babruvahana Kalaga,
Panchavati Chritha followed in the plaint?
D
ii. Has the plaintiff became entitled to the said right
under the Registered Will dated 18.06.1994?

iii. Does the plaintiff prove that her right under the said
Will was infringed by the defendants?"
E
13. Indisputably, in view of the submissions made at the
bar, respondent had acquired copyright in respect of seven
Yakshagana Prasangas as also in respect of Yakshagana
dramatic or theatrical form as a residuary legatee in terms of
F clause 12 of the Will dated 18.6.1994.

However, we may notice that whereas the trial court has
proceeded on the basis that clause 12 of the Will shall apply
in the instant case, the High Court opined that clause 11 thereof
G is attracted, stating:

" ..... No doubt, 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
H already referred to para No. 11 of the 'Will' while dealing
ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. B. 629
MALINI MALLYA [S.B. SINHA, J.]

"\< with the topic dramatic works vis-a-vis literary work and A
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 is 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 B
'Will' but the plaintiff also was given the copyrights in
respect of literary works and all books as well as the right
to print, republished and mark the literary works as well as
the books."

Referring to the new Encyclopaedia Britannica and
c
Halsbury's Laws of England, that a literary work with dramatic
elements in it would also be literary work, the High Court
observed:

"Dramatic works also could contain in its, passages of D
great literary taste, as in the case of great plays of William
Shakespear. 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) E
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."
F
It was furthermore held:

"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 G
.)(· Prasangas and thus a new look was given to the
-I 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 H
630 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 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, is entitled to copyright even in
respect of the dramatic works namely the seven
8 prasangas, by virtue of bequest made in her favour in
respect of copyrights and books."

14. Broadly speaking, a dramatic work may also come
within the purview of literary work being a part of dramatic
literature. The new Encyclopaedia Britannica (Vol-IV) 15th
c Edition, provides the following information about

"Dramatic Literature.

D
"Dramatic Literature: the texts of plays that can be read,
as distinct from being seen and heard in performance."

We must, however, notice that the provisions the Act make
..
a distinction between the 'literary work' and 'dramatic work'.
Keeping in view the statutory provisions, there cannot be any
doubt whatsoever that copyright in respect of performance of
E ·dance' would not come within the purview of the literary work
but would come within the purview of the definition of ·dramatic
work'. We, however, do not mean to suggest that any act of
literary work will be outside the purview of the Will dated
18.6.1994. Our exercise in this behalf was only for the purpose
..
F of clarifying the provisions of the Act with reference to the r
findings arrived at by the High Court.

15. For the aforementioned reasons, we agree with Dr.
Dhavan that paragraph 12 of the Will, namely, residuary clause
G shall apply in the instant case apart from the areas which are
otherwise covered by paragraph 11 of the Will. The residuary .,.
clause will apply because it is well settled that no part of the
stay lies in limbo. It was also not a case where respondent in
any manner whatsoever waived her right.
H
ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. 8. 631
MALINI MALLYA [S.S. SINHA, J.]

16. The learned trial judge on issue No. 4 opined that A
plaintiff had not been able to prove actual loss or damage
particularly having regard to the fact that Dr. Karanth had
associated himself with the appellants for a long time. The
learned trial judge recognized the equitable interest vested in
the plaintiff - respondent. A declaratory decree, therefore, was B
passed.
,. 17. We may notice at this stage that the form of injunction
granted both by the learned trial judge as also by the High Court
in favour of the plaintiff-respondent. The operative part of the
judgment of the trial court reads as under:
c
"Defendants or their employees or agents are restrained
from performing the above said 7 ballets or Prasangas or
in parts thereof in any manner as evolved distinctively by
Dr. Karanth by way of permanent injunction." D

The High Court, however, directed:

"(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 E
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 F
copyright in seven prasangas vesting with the plaintiff."

18. Decree for injunction is an equitable relief. The courts
while passing a decree for permanent injunction would avoid
multiplicity of proceedings. The court while passing such a G
decree, is obligated to consider the statutory provisions
.-'< governing the same. For the said purpose, it must be noticed
as to what is a copyright and In respect of the matters the same
cannot be claimed or otherwise the same is lodged by
conditions and subject to statutory limitation.
H
632 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 19. In R.G. Anand vs. Mis Delux Films and ors. [(1978)
4 SCC 118], this Court held:

"46. Thus, on a careful consideration and elucidation of the
various authorities and the case law on the subject
discussed above, the following propositions emerge:
B
1. There can be no copyright in an idea, subject-
matter, themes, plots or historical or legendary facts -<I
and violation of the copyright in such cases is
confined to the form, manner and arrangement and
c 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
D 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
E
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.
F
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
G 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
H
ACADEMY OF GENERAL EDU., MANI PAL & ANR. v. B. 633
MALINI MALLYA [S.B. SINHA, J.]

becomes a completely new work, no question of A
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 B
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 amounts to an act of
piracy it must be proved by clear and cogent c
evidence after applying the various tests 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 D
director the task of the plaintiff becomes more
difficult to prove piracy. It is manifest that unlike a
stage play a film has a much broader prospective,
wider field and a bigger background where the
defendants can by introducing a variety of incidents
E
give a colour and complexion different from the
manner in which the copyrighted work has
expressed the idea. Even so, if the viewer after
Jo: seeing the film gets a totality of impression that the
film is by and large a copy of the original play,
violation of the copyright may be said to be proved."
F

Yet again in Eastern Book Company and ors. vs. D.B.
Modak and Anr. ((2008) 1 SCC 1], this Court held:

"57. The Copyright Act is not concerned with the original G
idea but with the expression of thought. Copyright has
nothing to do with originality or literary merit. Copyrighted
material is that what is created by the author by his own
skill, labour and investment of capital, maybe it is a
derivative work which gives a flavour of creativity. The H
634 SUPREME COURT REPORTS [2009) 1 S.C.R.

A copyright work which comes into being should be original
in the sense that by virtue of selection, coordination or
arrangement of pre-existing data contained in the work, a
work somewhat different in character is produced by the
author. On the face of the provisions of the Copyright Act,
B 1957, we think that the principle laid down by the Canadian
Court would be applicable in copyright of the judgments
of the Apex Court. We make it clear that the decision of
ours would be confined to the judgments of the courts
which are in the public domain as by virtue of Section 52
c of the Act there is no copyright in the original text of the
judgments. To claim copyright in a compilation, the author
must produce the material with exercise of his skill and
judgment which may not be creativity in the sense that it
is novel or non-obvious, but at the same time it is not a
product of merely labour and capital. The derivative work
D
produced by the author must have some distinguishable
features and flavour to raw text of the judgments delivered
by the court. The trivial variation or inputs put in the
judgment would not satisfy the test of copyright of an
author."
E
20. The High Court, in our opinion, should have clarified
that the appellants can also take the statutory benefit of the
provisions contained in clauses (a), (i) and (I) of sub-section
(1) of Section 52 of the Act.
F
Section 52 of the Act provides for certain acts which would
not constitute an infringement of copyright. When a fair dealing
is made, inter alia, of a literary or dramatic work for the purpose
of private use including research and criticism or review,
whether of that work or of any other work, the right in terms of
G the provisions of the said Act cannot be claimed. Thus, if some
performance or dance is carried out within the purview of the
said clause, the order of injunction shall not be applicable.
Similarly, appellant being an educational institution, if the dance
is performed within the meaning of provisions of clause (i) of
H
ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. B. 635
MALINI MALL YA [S.B. SINHA, J.]

sub-section (1) of Section 52 of the Act strictly, the order of A
injunction shall not apply thereto also. Yet again, if such
performance is conducted before a non-paying audience by the
appellant, which is an institution if it comes within the purview
of amateur club or society, the same would not constitute any
violation of the said order of injunction. B

21. With the aforementioned modification in the order of
injunction, this appeal is dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.

R.P. Appeal dismissed. C