MOOTING EXERCISE 2020

IN THE HONOURABLE DELHI HIGH COURT

APPLICTION No…….2020

IN THE MATTER OF -

ABHISHEK………………………………… APPELLANT

V.

BIJU………………………………………. RESPONDENT

_________________________________________________________

AN APPLICTION UNDER ORDER XXXIX RULE 1 &2 OF CODE OF

CIVIL PROCEDURE ,1908 FOR A TEMPORARY INJUCTION

UPON SUBMISSION TO THE HONOURABLE CHIEF JUSTICE

AND HIS COMPANION JUSTICE OF DELHI HIGH COURT
_________________________________________________________

MOST RESPECTFULLY SUBMITTED COUNSEL APPEARING

ON BEHALF OF THE APPELLANT

NAME – PAWAN

CLASS ROLL NO. 182118

EXAM ROLL NO. 180461

 TABLE OF CONTENTS

1. Table of Contents………………………………………….……………………………………1

2. Statement of Facts…………………………………….………………………………………...2

3. Statement of jurisdiction ………………………...…………………………………………….3

4. List of References of Cases…………………………………………………………..................5

5. Statement of Issues………….………………………………………………………………….6

6. Summary of Arguments………………………………………………………...………………7

7. Argument Advanced…………………………………………………………………………...8

8. Prayer………………………………………………………………………………………….16

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 STATEMENT OF FACTS

1. It is the case of Abhishek, the appellant that it is engaged in the scriptwriting and is widely
recognized for its quality.

2. Abhishek conceived a plot for a reality TV. programme which requires competitor to survive in
adverse geographical terrain for a period of three months. 1 ST month to be spent on mountain,2nd
in forest and lastly in a desert.

3. He titled this show as ‘BACK TO NATURE’ and was confident that if screened as reality TV.
series would be a major hit amongst audience.

4. Having no previous experience in TV. Industry thereby sought assistance from his college friend
Biju (respondent).

5. Biju as having good experienced in TV. Industry thinks to discuss the possibility of meeting
producer for adaptation of the work. But that meeting turned into disappointment to Abhishek.

6. Biju termed this plot as exciting but unrealistic and suggest for major changes which was agreed
by Abhishek. For this he mailed the major outline of plot to Biju , response came after few days
where he called Abhishek to drop the idea and work for something else.

7. But Abhishek was confident and approached other producer to work on this.

8. After eight weeks Abhishek saw a trailer of a reality show named ‘Man and Nature’ on a popular
TV channel ‘X TV’ produced by a famous production Company ABC Ltd. which is to be broadcast
soon. After watching the it, the appellant was of the opinion that it is based on the story of his play
There was a transparent rephrasing or uncanny similarity to that the work of appellant.

9. Minor changes made only regarding types of geographical terrain i.e instead of three only two
were mentioned jungle and mountains. Even title used is not too distinctive or is not capable to
distinguish the theme of plot.

10. On investigation revealed that Company ABC Ltd. bought this idea of plot from Biju. Abhishek
thereby tried to contact him but no avail.

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11. Matter was listed before District court regarding the infringement of copyright by appellant
(there appears as plaintiff) under section 63 of Copyright Act,1957 but was dismissed.

12. Hence this appeal.

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 STATEMENT OF JURISDICTION

The original civil jurisdiction of Delhi High court is invoked and has been approached under
section 62 in Chapter XII of The Copyright act, 1956.The application for interim injunction is been
heard by the court under section 94 read with order 39 Rule 1 & Rule 2 of The Code of Civil
Procedure,1908.

Section 62 of Copyright act,1956

Jurisdiction of court over matters arising under this Chapter. —

(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement
of copyright in any work or the infringement of any other right conferred by this Act shall be
instituted in the district court having jurisdiction.

(2) For the purpose of sub-section (1), a “district court having jurisdiction” shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time
being in force, include a district court within the local limits of whose jurisdiction, at the time of
the institution of the suit or other proceeding, the person instituting the suit or other proceeding
or, where there are more than one such persons, any of them actually and voluntarily resides or
carries on business or personally works for gain.

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 LIST OF REFERENCES AND CASES

STATUTES:-

CODE OF CIVIL PROCEDURE CODE ,1908

THE COPYRIGHT ACT, 1956

JUDICIAL DECISIONS :--

(1) Anil Gupta v. Kunal Dasgupta,2002 (PTC) (DEL)

(2) Deeks v. Wells Air 1993 PC 26 (PTC) DEL

(3) Otto Eisenchiml, Petition v. Fowcett Publication Inc.US SC

(4) Harman Pictures N V v. Osborne (1967) ALL ER 324

(5) Donoghue v. Allied Newspapers Ltd. [(1937) 3 ALL ER 503]

(6) R.G. Annand v. Deluxe Films [AIR 1978 SC 1613]

(7) Urmia Juvekar Chiang v. Global Broadcast News Ltd. [2008 (36) PTC 377 (BOM)]

(8) Zee Telefilms Ltd. v. Sundial Communication Pvt. Ltd.,2003 (27) PTC (BOM) (DM)]

Books Referred:-

1. Copyright and Industrial Designs Intellectual Property Law – P, Narayan

2. Intellectual Property Law – John Holyook and Paul Torremans
3. International Copyright and Neighbouring Rights – Stephen M. Stewart
4. Law relating to Intelllectual Property Right 2009 – V.K. Ahuja
5. WIPO Background Reading Material on Intellectual Property

Websites
www.legalserviceindia,com
www.copyright.gov.in/

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 STATEMENT OF ISSUES

ISSUE: 1. Whether film production Company ABC Ltd. and defendant has infringed the Copyright
over an ideas of a plot tilled ‘Back To Nature’ planned to film a reality TV. programme by
Abhishek (Appellant) which were expressed under good faith?

Sub Issues 1.1: Whether Defendant has committed a breach of confidentiality?

ISSUES 2. Whether Copyright exists over an idea if expressed or reduced in writing in e-mode?

ISSUE: 3 Whether Balance of Convenience is in favor of Abhishek (Appellant)?

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 SUMMARY OF ARGUMENTS

ISSUE: 1. Film production Company ABC Ltd. and defendant has infringed the Copyright
over an idea of a plot tilled ‘Back To Nature’ planned to film a reality TV. programme by
Abhishek (Appellant) which were expressed under good faith because: -

Defendant and ABC Ltd. Company is using the alleged plot with substantial copying of the form
in which the concept of ideas or information has been previously embodied. It acquired by a person
under such circumstances that it would be a breach of good faith and the defendant has not just
cause or excuse of doing but also termed it as unrealistic but shared this with ABC Ltd. This
brought to breach of confidence by Defendant. The distinction between the copyright and
confidence is of considerable importance with regard to unscreened works though expressed in
writing. Breach of trust or confidence give a broader right then breach of copyright. The Appellant
had emailed his outline of plot/idea and production plan with defendants with specific
understanding that defendant would assist in meeting of producer for adaptation of the work.

ISSUES 2. Copyright exists over concept of idea if expressed or reduced in writing in e-mode
because: -

Concept of plot expressed orally later expressed in writing through email is a literary work which
is protected under Copyright act ,1957 should be protected. Appellant alone has the exclusive right
to reproduce it or adapt it to make a television programme. Copyright law gives people the right
to exclude others from copying what they have written. Copyright arises automatically as soon as
a protectable work has been fixed in a tangible medium such as a floppy disk or hard drive

3. Balance of Convenience is in favour of Abhishek (Appellant) because: -

Abhishek is widely recognized scriptwriter which has already plotted a plan with detailed script
and required only producer to film and screen it. Infringement suits are lengthy which makes it
more inconvenient for Abhishek. If preliminary injunctions were not granted to enforce valid
copyright, then the infringers could continue the wrongful act

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 ARGUMENTS ADVANCED

ISSUE: 1. Whether film production Company ABC Ltd. and defendant has infringed the
Copyright over an ideas of a plot tilled ‘Back To Nature’ planned to film a reality TV.
programme by Abhishek (Appellant) which were expressed adequately under good faith?

It is most respectfully submitted to this Hon’ble court –

That taking into consideration the statement of facts, it can be said that defendant had intentionally
infringed the copyright over the idea that has been expressed through email and acquired under
good faith. This is based on section 51 of The Copyright Act ,1957.

When copyright infringed. — Copyright in a work shall be deemed to be infringed—

(A) when any person, without a licence granted by the owner of the copyright or the Registrar
of Copyrights under this Act or in contravention of the conditions of a licence so granted or of
any condition imposed by a competent authority under this Act……………..

(B) When any person……

(i).

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the
owner of the copyright,

……..

Explanation. - For the purposes of this section, the reproduction of a literary, dramatic, musical
or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

It is to be asserted that concept of plot expressed orally later in written form through email is a
literary work within the meaning of Sec.2 (o) of the Copyright Act,1957 and have a copyright
[section 14 (a)(i)]. Appellant alone has the exclusive right to reproduce it or adapt it to make a
television programme.

Law should protect the ideas or the owner of the ideas. Yes, the owner of the ideas. If there is
owner of any expression, work or any property then- why can’t be there owner of an idea? Idea

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comes from one person; may it be expressed by any other persons but it has the source from a
particular human mind. It is true that expressing an idea take much labor and time to make it
fruitful. But at the first place if there is no seed (idea) then how it will be sowed (implemented)
and how it will grow into a tree and give fruit (expression). An idea holds as much as importance
like its expression because what will a person express if there is no idea.

Innovative and creative ideas do not come with a single snap. It needs much patience and good
observation skills to come up with a better idea. So it needs equal protection as the expression of
the idea.

That taking into consideration of the peculiar facts and circumstances of the case the appellant had
submitted his concept of plot and production plan with defendant with specific understanding that
the defendants would brought some changes to make in more realistic. It can be said that
confidential communication which the appellant had given to the defendant has been breached by
the defendant therefore injunction be issued by court.

The appellant here is a reputed a script writer having scripted various films. With development
and adaptation of modern technique TV industry have shown their presence and this motivated
appellant also and conceived an idea for a reality TV programme. The outline of idea or
information covered major part of the play (concept notes for a T.V. show) was shared with Biju
in good faith.

It was held in Anil Gupta v. Kunal Dasgupta,2002 {(PTC)Del} that a concept fledged with
adequate details, it is capable of registration under the Copyright Act. Court highlights the
importance of protecting the ‘Concept note’ prepared for T.V show as follow: -

In modern day, when small screen has taken over the earlier means of mass communication
like radio, idea(concept/theme/script)of a broadcaster has wider potentiality of capitalizing
revenue and if that idea is not protected in a given case ,a person who has conceived an idea to be
translated into the reality T.V show which could be key to its success with audience, then,
channels with their enormous resources could always be in a better position to take the idea from
any author and then develop it at their own end. In such cases, the original author of the concept
will be left high and dry. In appropriate cases, thus, interim injunction may be issued restraining

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such ‘breach of confidentiality’ of the concept/theme/script; otherwise it would be catastrophe for
the television industry.

The court, thus, gave an ‘economic rationale’ for protecting the copyright in concept note for T.V
shows.

In the case of Deeks v. Wells (AIR 1933 PC 26): The court stated that-

As there is no copyright in ideas, it is no infringement of copyright to adopt the ideas of another

or to publish information and derived from another, provided (condition) there in no copying of
the language in which these ideas have, or that information has been previously embodied.

Minor changes made by defendant only regarding types of geographical terrain i.e. instead of three
only two were mentioned jungle and mountains. Even title used “MAN AND NATURE” is not
too distinctive or is not capable to distinguish the theme of plot as of appellant “BACK TO
NATURE”. Here the company work is nothing but a literal imitation of the concept/idea shared
to defendant with some variation There was a transparent rephrasing or uncanny similarity to that
the work of appellant

In the case of Otto Eisenchiml v. Fowcett Publications

Duffy, Chief Judge observed as follows: -

"An infringement is not confined to literal and exact repetition or reproduction; it includes also
the various modes in which the matter of any work may be adopted, imitated, transferred, or
reproduced, with more or less colorable alterations to disguise the piracy. Paraphrasing is
copying and an infringement, if carried to a sufficient extent. The question of infringement of
copyright is not one of quantity but of quality and value".

In the case of Harman Pictules N.V. v. Osborne & ors. It was held that similarities of incidents
and situation undoubtedly afforded prima facie evidence of copy and in the absence of any
explanation by the defendant regarding the sources, the plaintiffs must succeed.

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Sub Issues 1.1: Whether Defendant has committed a breach of confidentiality?

Defendant has committed a breach of confidentiality

It is most respectfully submitted to this honorable court –

That Abhishek and Biju were having good association, affinity, connection and relationship from
their college time. He was like a real friend one who walks in when the rest of the world walks
out.

Quote by a famous personality Oscar Wilde on friendship: -

“Ultimately the bond of all companionship, whether in marriage or in friendship, is conversation”

Breach of trust or confidence give a broader right then breach of copyright .Ideas and information
which has been acquired by the defendant under confidentiality and if the defendant acts and
makes a reality show on the basis of the concept and format supplied by the appellant, in such
circumstances it would be a breach of good faith on the part of the defendant to exhibit or telecast
any show and dependent can’t take recourse of any pretext any show and defendants cannot take
recourse of any pretext or excuse for doing so and in such eventuality the court may restrain the
defendants by granting an injunction

In a case of Zee Entertainment Enterprises Ltd.v Gajendra Singh: -

It would be necessary for a court in each case to examine whether the concept note constitute work
which is copyrightable and entitled to protection under the provision of the Copyright Act.

In a leading case – Urmi Juvekar Chiang v. Global Broadcast News Ltd. court summarized the
following principle highlighted in Zee Teleflims Ltd. v. Sundial Communication Pvt. Ltd.

The principles on which the action of breach of confidence can succeed, have been culled out as

(i) the (Appellant) had to identify clearly what was the information he was relying on;

(ii) the (Appellant) had to show that it was handed over in the circumstances of confidence;

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(iii) the (Appellant) had to show that it was information of the type which could be treated as
confidential; and

(iv) the (Appellant) had to show that it was used without license or there was threat to use it

So, for the purpose of breach of confidence, it is settled law that a party can claim
confidentiality even in relation to a concept or idea, unlike in action for infringement of copyright.
The essence of the law of breach of confidence is that whatever may be the origin of information,
the person who has obtained it in confidence will not be allowed to use it as a springboard for
activities detrimental to the person who provided the confidential information.

Thus from material on record, the Appellant has made all the four criteria required for
considering grant of ad interim injunction for breach of confidentiality

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ISSUES 2. Whether Copyright exists over an idea if expressed or reduced in writing in e-
mode?

It is most respectfully submitted to this Hon’ble court –

That taking into consideration the statement of facts if a concept of plot expressed orally later
expressed in writing is a literary work is protected under Copyright act ,1957 .

Section 17 of the Copyright Act, 1957 statutorily recognizes the author of the work to be first
owner of the copyright therein. However, it is subject to some exceptions. As in the case of a
literary or dramatic work the author i.e. the person who creates the work is the author.

Similarly, in the case of Donoghue v. Allied Newspapers it was pointed out that there was no
copyright in an idea and in this connection Farwell, J. Observed as follows: -

…. that there is no copyright in an idea, or in ideas............. of the idea, however brilliant and
however clever it may be, is nothing more than an idea, and is not put into any form of words, or
any form of expression such as a picture or a play, then there is no such thing as copyright at all.
It is not until it is (If I may but it in that way) reduced into writing, or into some tangible
form, that you get any right to copyright at all, and the copyright exists in the particular
form of language in which, or, in the case of a picture, in the particular form of the picture
by which, the information or the idea is conveyed to those who are intended to read it or look
at it".

Section 14 in the Copyright Act, 1957

Meaning of copyright. —For the purposes of this Act, “copyright” means the exclusive right
subject to the provisions of this Act, to do or authorise the doing of any of the following acts in
respect of a work or any substantial part thereof, namely: -

(a) in the case of a literary, dramatic or musical work, not being a computer programme, —

(i)to reproduce the work in any material form including the storing of it in any medium by
electronic means;

(ii) …….

(iii) to perform the work in public, or communicate it to the public;

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(iv) to make any cinematograph film or sound recording in respect of the work;

(v) ….

(vi)to make any adaptation of the work;….

Donoghue v. allied newspapers ltd. - in this case also court held that there is no copyright in idea.
An idea cannot be protected by law but only the expression.

In R.G Anand v. Delux Films: - The Apex Court stressed on the impression of the viewers as
the surest test to find out substantial copying of the expression

Copyright law gives people the right to exclude others from copying what they have written.
Copyright arises automatically as soon as a protectable work has been fixed in a tangible medium
such as a floppy disk or hard drive.

Thus, this Hon’ble must consider the contention of appellant as an idea expressed must be brought
to be protected and respondent should not be allowed for further infringement. And an interim
relief must be granted in form of interlocutory injunction.

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3.Whether Balance of Convenience is in favour of Abhishek (Appellant)?

It is humbly submitted that the one of the major deciding factor for the granting of an interlocutory
injunctive relief is that of ascertaining the amount of inconvenience that is caused to the Appellant.

Interlocutory injunction is a deterrent measure.

It is humbly submitted that if the injunction is not given to the Respondent, they would become a
precedent for others to violate the Copyright. Infringement suits are lengthy which makes it more
inconvenient my client, thus temporary injunction is the remedy available.

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 PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, the applicant
most humbly and respectfully in the interest of equity and justice prays and requests the
Honourable Court:

1. To grant an interlocutory injunction,

a. to obstruct Biju from using the alleged idea developed in concept until the main suit for
infringement is determined, and
b. to restrain Company ABC Ltd. from filming the idea of Abhshik.

2. To issue any appropriate directions and orders as the Hon’ble Court deems fit in the interest of
justice, equity and good conscience.

And for this, the Appellant as in duty bound, shall humbly pray.

Date…..
Place……

COUNSELS FOR THE APPLICANT

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