HULM ENTERTAINMENT PVT. LTD. & ORS. vs FANTASY SPORTS MYFAB11 PVT. LTD. & ORS.

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 17th October, 2023
+ CS(COMM) 244/2022
HULM ENTERTAINMENT PVT. LTD.
& ORS. ….. Plaintiffs
Through: Mr. Sandeep Sethi, Senior Advocate with Mr. Sudeep Chatterjee, Mr. Tejveer Bhatia, Mr. Rohan Swarup and Mr. Kiratraj Sadana, Advocates

versus

FANTASY SPORTS MYFAB11 PVT. LTD.
& ORS. ….. Defendants
Through: Mr. Akhil Sibal, Senior Advocate with Mr. Ankur Sangal, Mr. Sucheta Roy, Ms. Asavari Jain and Mr. Raghu Sinha, Advocates for D-1.
CORAM:
HON’BLE MS. JUSTICE JYOTI SINGH
JUDGMENT
JYOTI SINGH, J.
I.A. 5896/2022 (under Order XXXIX Rules 1 and 2 CPC, by Plaintiffs) and I.A. 6308/2022 (under Order XXXIX Rule 4 CPC, by Defendant No.1)

1. This judgment will dispose two applications, one under Order XXXIX Rules 1 and 2 CPC filed by the Plaintiffs and the other under Order XXXIX Rule 4 CPC preferred by Defendant No. 1, seeking vacation of ex parte ad interim injunction granted vide order dated 13.04.2022, restraining the Defendants inter alia from making available for downloads or in any manner unauthorizedly using Plaintiffs’ copyrighted work through MYFAB11 App or any other similar App using the impugned application or computer programme so as to result in infringement of Plaintiffs’ copyrighted works. Vide order dated 13.04.2022, this Court had granted ex parte ad interim injunction in favour of the Plaintiffs’ and the operative part of the order is as follows:
“33. Having heard learned Senior Counsel for the Plaintiffs, this Court is of the view that Plaintiffs have made out a prima facie case for grant of ex parte ad-interim injunction. Balance of convenience lies in favour of the Plaintiffs and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.
34. Accordingly, Defendants, their Directors, Assignees, Partners or anyone acting for or on their behalf, inter alia are restrained from making available for downloads or in any manner unauthorizedly using the Plaintiffs’ copyrighted works through the MYFAB11 App or through any other similar App using the impugned application/computer program on Smart Phones, Tablets, Smart TVs, Laptops, Computers or any other digital gadgets or any other application, so as to result in infringement of Plaintiff’s copyrighted works.
35. Defendants their subsidiaries, agents, distributors, advertising agencies, developers, partners, acting for or on their behalf are further restrained from making available to the public for downloading the copyrighted content of the Plaintiffs on all electronic medium including App Store, on any electronic devices through any medium or download via any applications like “software update” (i.e. Defendant’s partner app) or through any social media like youtube.com, facebook.com, Instagram, Telegram etc. so as to result in acts of infringement of the Plaintiffs’ copyright.
36. Defendant No. 6 its subsidiaries, agents, distributors, advertising agencies, developers, partners, acting for or on their behalf are restrained from making available to the public for downloading the copyrighted content of the Plaintiffs on all electronic medium including on any electronic devices through any medium, or download via any applications like “software update” (i.e. Defendant’s partner app) or through any social media like youtube.com, facebook.com, Instagram, Telegram or through their Web Hosting Services including the cloud, etc. so as to result in acts of infringement of the Plaintiffs’ copyright.
37. Defendants No.4, its directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and, on its behalf, or anyone claiming through, by or under it, are directed to suspend the domain name registration of myfab11.com which infringe the Plaintiffs’ exclusive rights.
38. Defendants No. 5 its directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and, on their behalf, or anyone claiming through, by or under it are directed to remove Defendant No. 1’s mobile App MYFAB11 from its listings.”

2. Thereafter, an application was filed by Defendant No.1 seeking vacation of the ex parte injunction order in which notice was issued on 25.04.2022 and upon a statement made on behalf of Defendant No.1 that without prejudice to its rights and contentions it had removed the stock feature, directions issued to Defendants No.6, 4 and 5 in paragraphs 36 to 38 respectively, vide order dated 13.04.2022 were suspended till the next date.
3. I.A. 5896/2022 has been filed by the Plaintiffs seeking injunction against Defendants No.1, 2 and 3 (hereinafter referred to as ‘Defendants’) predicated on their claim that Plaintiffs are developers and operators of the unique Fantasy Sports Mobile Application EXCHANGE22 which incorporates features of Fantasy Sports League and Stock Market. Plaintiff No.1 has been recognized as a start up by Start Up India, an initiative under the Government of India, which assists entrepreneur platforms to network, access free tools and resources and participate in programs and challenges. Plaintiff No. 2 first came up with the unique idea of integrating the features of a Fantasy Sports League and Stock Market in the year 2010. Over the years, Plaintiffs No. 2 and 3, with hard work and toil, developed their idea into a tangible form and finally launched beta version of their application in August, 2019 to test the mobile app on the website https://exchange22.com/. Plaintiff No. 1 Company was incorporated on 16.09.2019 and on 21.11.2019, EXCHANGE22 mobile App was officially launched.
4. As described in the plaint, fantasy sports are played online and the general way to play is that a user creates a virtual team of his own, depending upon his own analysis of the performance of the players, prior/during an ongoing sporting match and/or a sporting league. As and when the matches are played, users’ team competes against the other users’ team to find its place in the points ladder. Such games are played either for fun or prize or even money. These are games of skill where a user, with his analytical skill puts together a virtual team of real sports persons and success depends predominantly upon superior knowledge, training, attention, experience and adroitness of the player. User earns points based on how his own analysis is close to the actual, real life performance of the sports person. Fantasy Sports are prevalent in various sports albeit predominantly in football, baseball, cricket, etc.
5. Plaintiffs claim that they have formulated their own Fantasy Sport Mobile App which differs from the prevalent Fantasy Games Leagues. Plaintiffs’ Fantasy Sports Game is registered under the Copyright Act, 1957 (hereinafter referred to as the ‘Act 1957’) and being literary/dramatic work, the copyright work includes detailed working of the fantasy game including ‘Object of the Game’ and the ‘Components’, which explain each and every step that a user experiences on its mobile application, such as the components of the ‘Home page’, ‘My Portfolio page’, ‘My Balance page’, the process of verifying the account, a detailed point system, rules and regulations. Plaintiffs’ work also contains steps to add/withdraw money to/from the ‘Wallet’ through multiple payment options.
6. It is averred in the plaint that Plaintiffs have devised a ‘first of its kind’ fantasy league gaming platform for cricket, football, basketball and kabaddi and what sets it apart from the other fantasy gaming Apps, where the users play like a real game but virtually, is that EXCHANGE22 incorporates the unique traits of ‘share market trading’ which allows the user to buy/sell the players in the same manner as one would buy/sell shares. User can buy any number of shares of a player upto a maximum of 22 players in one match going on anywhere across the world. The App is therefore an amalgamation of features of Fantasy Sports League and Stock Market Trading. Plaintiffs have developed a detailed ‘concept note’ and an attractive ‘Graphical User Interface’ (‘GUI’) with unique program structure and placement of information, which is easy to access with investment of labour and money and have also applied for a patent registration for the invention.
7. It is further averred that an in-house team of designers and developers of Plaintiff No.1 has worked extensively to design the GUI of the Mobile App. Huge sums of money have been expended on product development, advertising and media costs in developing the brand name and EXCHANGE22 Mobile App. After its launch, for the period 2019-2022, the expenditure incurred on software development and maintenance has been close to Rs.96,00,912/- and with respect to advertising, promotions, etc. Plaintiffs have incurred an expense of Rs.7,79,56,657/-. Popularity of the app can be seen from the huge revenues earned from platform fees paid by users, which are to the tune of Rs.138,112,327/- for the year 2021-2022.
8. Plaintiffs further claim that on the date of approaching the Court they had about 4,57,911 users with about 32,000 daily active users at any given point of time with an average engagement of 1.10 hours. In a short span of 3 years, Plaintiffs have carved a distinct niche for themselves in the world of fantasy gaming leagues and are entitled to protection against unlawful use by third parties including the Defendants.
9. It is pleaded by the Plaintiffs that Defendant No.1 has introduced a new update on its Fantasy Sports League Mobile App MYFAB11 in the form of a new feature titled ‘STOCKS’ and Defendants have copied not only the concept but also its working, features and execution of Plaintiffs’ buy/sell interface and it was one day before launch of Indian Premier Leagues’ first match on 26.03.2022, that Defendants launched the new version. This, according to the Plaintiffs, amounts to exploiting their success, goodwill and reputation and infringement of the copyright. Plaintiffs thus allege infringement of the copyright in the GUI and concept note, in addition to data theft of their curated data and unfair competition.
10. On the contrary, in I.A. 6308/2022, seeking vacation of stay, it is averred that Defendant No.1 started as a proprietorship firm on 31.03.2019 and later incorporated as a Private Limited Company on 24.01.2020 by Defendants No.2 and 3. Defendant No.1 operates a mobile application under the trademark ‘MYFAB11’ as a real-money fantasy gaming business model. The application is a flagship product of Defendant No.1, where lakhs of participating users simultaneously create virtual teams comprising of real world athletes engaged in participating in a sport event and compete against teams drafted by other participating users in a game contest. The application offers game formats not only for cricket but other sports. The modalities include allowing one to choose a team based on his preference and sports knowledge before the match starts. Based on the performance of the players during the actual match, the user accumulates points and gets ranked at the end of the game. If a user participates in a game with money, it goes to a common pool and user gets the winning amount based on the rank after deduction of the applicable service fee. Recently, on 25.03.2022, Defendant No.1, introduced the concept of trading which allows users to “kharid(buy)/bech(sell)” a particular player, in order to add a dimension to the application and provide a new medium of entertainment and revenue generation for the users. The application has become a house-hold name, which is reflective from the revenue generated as well as millions of users. It is pleaded that the “kharid/bech” pricing is based upon each player’s stats and the formula used to calculate the same has no relation to any other platform and is premised on business strategy and vision of Defendant No.1, based on recent performances of the players. This is analogous to the credits of players that are used in daily fantasy format. Defendants’ App MYFAB11 has accumulated 39,36,952 users and is downloaded by over 5 million users with average engagement time of each user, everyday, being 8 minutes. Defendant No.1 has earned total revenue of approximately Rs. 8 crore in Financial Year 2020-2021 which increased to Rs.55 crores in Financial Year 2021-2022. Defendant No.1 has made a name for itself in the market and has engaged Indian cricketers as brand ambassadors. The advertisements are broadcasted on various popular TV channels and huge sums of money have been spent on advertising on reputed OTT Platform – MXP Media India Ltd (MX Player) during IPL 2020. Approximately Rs.1.5 crores has been spent in affiliate marketing every month in addition to Rs.50 lakhs in digital advertising during ongoing IPL 2022. Defendant No.1 also engages in philanthropic activities and has donated to various charities.
11. It is further stated in the application that Plaintiffs have concealed and suppressed from this Court that the offending “kharid/bech” feature in Defendants’ application forms only a small part of the application whereas the primary feature is one which allows its users to select players and build a team like many other Fantasy League Applications, which are prior known and existing. Plaintiffs have also not disclosed that the domain name of the rival parties has nothing in common and yet sought suspension of the domain name www.myfab11.com. Most importantly, Plaintiffs have misguided the Court and not disclosed that the concept is not new and has existed in Fantasy Sporting market for decades. Plaintiffs are not the first to come up with the idea of combining Fantasy League with Stock Market (dynamic pricing of players) and there are many third parties who have created applications on similar concept, internationally and in India. Plaintiffs have failed to establish ‘originality’ in the concept, which is a sine qua non for claiming infringement under the copyright regime. Concepts and ideas, even otherwise, cannot be protected under the Act 1957, as only ‘expression of ideas’, is granted protection. Misrepresentation has been made by the Plaintiffs by stating that there is similarity between the User Interface in the rival apps which ground is even otherwise unsustainable, as after receipt of the legal notice from the Plaintiffs and without prejudice to the rights and contentions as well as to avoid unnecessary conflict, Defendant No.1 has changed the UI to “kharid/bech” feature, which makes the two applications wholly dissimilar. Defendant No.1 urges that the ex parte injunction order is not only affecting the reputation of Defendant No.1 on account of bad publicity generated by the Plaintiffs on various platforms regarding the injunction order, but is also causing huge financial loss and therefore the injunction order be vacated.
12. Contentions raised by Mr. Akhil Sibal, learned Senior Counsel on behalf of Defendant No.1 can be encapsulated as follows:
a) Plaintiffs issued a legal notice to the Defendants on 26.03.2022, to which a reply was sent by Defendant No.1 on 31.03.2022, denying copyright infringement and bringing forth that there can be no copyright in a concept of a game. Being in communication with the Defendants, Plaintiffs chose to file the suit on 12.04.2022 after waiting for 11 days expressing false urgency to claim exemption from advance service so that an ex parte order could be obtained by false averments and misrepresentation. As a consequence of the ex parte injunction, Defendant No.1 was unable to operate the trading feature of its application during the most lucrative period i.e. the IPL Season, resulting in financial loss in addition to damage to its reputation on account of wide publicity of the interim order by the Plaintiffs in the media and other social networking platforms.
b) Plaintiffs are guilty of gross suppression and concealment of material facts and misrepresentation, which led to the passing of the ex parte injunction order and the order deserves to be vacated on this ground alone. In the plaint, particularly, paragraphs 7 and 11 thereof, Plaintiffs have falsely averred that they are the originators and proprietors of the concept and expression of their gaming platform which amalgamates the features of fantasy sports leagues and stock market trading and this unique feature sets them apart from all other existing fantasy gaming Apps. This submission of the Defendants finds reflection in paragraph 23 of the order dated 13.04.2022. The averment is totally false and contradictory to the documents filed along with the plaint which contain a categorical admission that Plaintiffs are not the first to originate this idea and that the app is ‘India’s first sports stock exchange’. Implicit in this statement is an admission that Plaintiffs’ app is not unique.
c) Plaintiffs have concealed the fact that they are not the first ones to come up with the idea of combining features of Fantasy Sports League with stock market as there are many third parties who have created applications on similar concepts, such as Sixer, World Cup Cricket Stock Market APK by Mastishq Technologies, GSX.com, CricStocks, PlayerSX, Prediction Strike, JockMKT, Trade Stars, TradeFan, etc. To show the commonality of features between the third party Apps and the App of the Plaintiffs, documents have been filed and as an illustration one can see that the App Sixer allows users to “buy and sell fantasy stocks in cricket players. The better the player plays on the pitch, the price goes up and vice versa.” “The prices are determined by player performance”. The owner of the App claims to be “World’s First Cricket Stock Market. Buy and Sell Stocks in Cricketers”. Application also has ‘Buy’ and ‘Sell’ Buttons and a page titled ‘Your portfolio’. Stock price goes up when the player performs on the pitch. Documents such as the Wayback Machine dated 23.08.2018, WhoIS dated 08.05.2018, Facebook Page and Copyright Notice below the website indicate that the application was created prior to that of the Plaintiffs’ Mobile App. Similar documents have been filed with respect to other applications aforementioned.
d) Additionally, there are other websites which create white label Fantasy Sports applications that can be used directly by an entity seeking to build a mobile application with the said concept. ‘Uber Like App’ introduces the fantasy sports stock trading App that turns the sports from just a spine-tingling time pass into remunerative investments and sports fans can couple their knowledge in sports into stock trading in one shot. ‘App Dupe’ is an application where players and teams become stocks in a stock market and the stocks can be bought and sold and it allows the users to acquire the earnings based on their statistics.
e) Article titled 9 Apps dated 17.06.2019, details the features required for creating fantasy sports mobile Apps like Dream11, which belies the stand of the Plaintiffs that their App EXCHANGE22 has unique features and is the original work of the Plaintiffs. In fact, even the point system followed by the Plaintiffs is not original and the same system was followed in Dream11 as far back as in September, 2018 as per the Wayback Machine. In view of the similarity of features with several pre-existing Apps, copyright asserted by the Plaintiffs over the concept fails on account of lack of originality, which is a sine qua non under the copyright regime, to allege infringement.
f) Faced with the obvious deception, Plaintiffs after reading the present application filed by Defendant No.1, have now shifted their stand to contend that there are differences in the features of their App and other Apps, which is an admission that the initial stand taken to obtain injunction was false. Significantly, the new position adopted by the Plaintiffs, is only by way of filing a List of Documents, without an amendment to the pleadings to co-relate them and should not be accepted, in law. Plaintiffs cannot be permitted to set up a case beyond the pleadings in the plaint to shift the goal post after their misrepresentation and dishonesty is discovered. It is settled law that the correctness of the injunction order can be tested only on the averments made at the time when the order was passed and not on a new or improvised stand, Plaintiffs must be called upon to discharge the onus of proving that they are the originators of the trading/stock feature in their Fantasy Sports App, in the absence of which, the stay must be vacated. This argument is without prejudice to the legal issue that no copyright exists in ‘features’ or ‘functionality’ of a mobile application.
g) Even otherwise, case of the Plaintiffs falls to the ground for the simple reason that Plaintiffs have misleadingly attempted to claim copyright in the ‘concept of combining Fantasy League with Stock Market’, predicated on copyright registration dated 11.02.2022. Plaintiffs allege copyright infringement of their ‘concept note’, registered as a literary/dramatic work, but there is no attempt in the plaint or any other document to demonstrate how the Defendants’ App is a substantial reproduction of the registered literary work. The only comparison shown is between the screenshots of the User Interface of the Plaintiffs’ App, which is not registered and the screenshots of the Defendants’ App. It is a settled law that concepts and ideas cannot be protected under the Act 1957 and it is only the expression of the ideas that are granted protection.
h) Plaintiffs are essentially seeking to distinguish their App by contending that: (i) Plaintiffs App allows users to buy/sell players only for the duration of the match; (ii) price of the players is governed by their performance; and (iii) the ‘buy’ and the ‘sell’ price are different. Each of these distinguishing features are entirely unoriginal and existed prior to Plaintiffs’ App and moreover the distinctions were not even pleaded in the plaint. Instead, what is pleaded is that Plaintiffs gave birth to the idea of the fantasy sport league with a stock feature, which is wholly incorrect and false. Assuming that these distinguishing features exist and are relevant, even then Plaintiffs have no case inasmuch as Defendants’ App allows users to buy/sell players even during the match which feature is missing in the Plaintiffs’ App and even on this touchstone, there can be no infringement.
i) In order to make out a case for infringement of copyright, Plaintiffs must show violation of an exclusive right of copyright under provisions of Sections 14 and 51 of the Act 1957. There is no pleading in the plaint claiming that the work of the Plaintiffs is an ‘artistic work’ within the meaning of Section 2(c) of the Act 1957. Plaintiffs are attempting to allege infringement in the functionality of the App, which is impermissible in law. Asserting a right of copyright in a concept note without showing that the said note constitutes ‘literary work’ cannot take the case of the Plaintiffs any further.
j) In the oral submissions, Plaintiffs are now raising a new point that their mobile app is an ‘adaptation of the work’ in terms of Section 14(a)(vii) of the Act 1957 and therefore a mobile app can infringe a literary work, without substantially reproducing the text of the literary work. There is no such pleading claiming ‘adaptation’ in the plaint and in any event, the argument is misconceived as ‘adaptation’ in relation to a literary work, as defined in Section 2(a)(ii) and (iii) would not include a mobile application.
k) Plaintiffs’ assertion of copyright infringement in the Graphical User Interface (GUI) of their app is wholly misconceived. The only comparison, as evident from the plaint, is between the GUI of the Plaintiffs’ app and Defendant’s app. GUI is not a ‘work’ under the Act 1957 and therefore, in terms of Sections 13 and 16 of the Act 1957, there can be no copyright in a GUI, per se. A GUI combines three elements viz. a computer programme which enables the functionality and appearance of the GUI; the artistic/graphic elements of the visual display of the GUI; and the text/literary works contained in the GUI, which are visible to the user. There can be copyright in a computer programme, literary work and/or artistic work contained in a GUI but there cannot be a copyright in the GUI itself. There is no pleading claiming copyright in any artistic work and therefore no copyright can be claimed in the graphic elements of the visual display of the GUI. Similarly, there is no claim in the pleading with respect to copyright in the ‘computer programme’. Plaintiffs have not identified in the plaint which text in the GUI is the original literary work for which they claim copyright, which averment is essential to test whether the identified literary work is ‘original’ as required under Section 13 of the Act 1957.
l) Without prejudice to the aforesaid arguments, even otherwise on a bare comparison, the GUI of the Defendants’ App is substantially different. The visual displays of the two apps use different colour schemes, graphics, text and placement of the elements. While comparing the two interfaces, the idea/expression dichotomy and the Doctrine of Merger would apply and thus where an idea can only be expressed in a limited number of ways, there can be no copyright protection even in the expression of that idea as that would confer monopoly on the idea and would be against the settled law.
m) Plaintiffs have misleadingly claimed proprietary rights over the system/formula which sets the price of any player on their mobile app and have alleged that Defendants have copied the same, without indicating even the basis on which the proprietary right is claimed. Firstly, proprietary rights over the system/formula of determining the price can only be claimed through patent registration and not under the Act 1957. Plaintiffs have applied for a patent registration for trading a value of a player, which is pending. Secondly, Defendant No.1 uses its own algorithms based on publicly available data/statistics which would be common to the Plaintiffs. Since the Defendants’ point system is 4 to 8 points higher than the Plaintiffs’ system, there is a consequent variation in the buy/sell price of 6 to 8 points, which is purely coincidental. The fantasy points are set according to the recent performance of the players and have nothing to do with the price set by the Plaintiffs’ application. Incidentally, there is no allegation of theft with respect to the points assigned to the players.
n) Reliance was placed on the following judgments:-
i) Mattel, Inc. & Ors. v. Mr. Jayant Agarwalla & Ors., 2008 SCC OnLine Del 1059, where the Court while dealing with the game of scrabble and relying on the idea/expression dichotomy and Doctrine of Merger rejected the claim of copyright infringement in the board game and the rules. Plaintiff had pleaded ownership of copyright in the game board as an ‘artistic work’ and in the rules as ‘literary work’.
ii) Sanjay Kuamr Gupta & Anr. v. Sony Pictures Networks India P. Ltd. and Others, 2018 SCC OnLine Del 10476, where it was held that there cannot be a copyright in a concept or an idea and copyright can only subsist in an identified ‘work’ as also that there can be no copyright outside the Act 1957.
iii) Twentieth Century Fox Film Corporation v. Zee Telefilms Ltd. & Ors., 2012 SCC OnLine Del 3524, where also the Court held that there can be no copyright in idea, concept, principles or discovery and rejected the claim for copyright in presentation techniques/format.
iv) Samir Kasal v. Prashant Mehta and Others, 2022 SCC OnLine Del 184, where the case concerned an international cricket league made of retired cricket legends in a test format of two innings of 10 overs each. Relying on the judgment of the Supreme Court in R.G. Anand v. Delux Film and Others, (1978) 4 SCC 118, the Court held that there can be no copyright in an idea and rejected the copyright claim on the format.
v) Plaintiffs placed heavy reliance on the decision in Broderbund Software, Inc. v. Unison World, 648 F. Supp. 1127 (N.D. Cal. 1986), a judgment by the US District Court but what was not placed before the Court is the relevant statutory framework within which the said decision was rendered, which differs from the Indian Copyright Act. Under the relevant US Statute, the subject matter of copyright is an inclusive category unlike the provisions of Sections 13 and 16 of the Indian statutory regime besides the fact that the former provides for copyright in ‘audiovisual works’, for which there is no copyright in the Indian Act. Significantly, even in the said judgment, the Court does not render a finding that copyright exists in GUI per se and a plain reading of the judgment makes it clear that the Court was concerned with the claim for ‘audiovisual’ copyright infringement and ‘audiovisual displays of the computer program’, none of which are the subject matter of the present case. Reliance placed on the decisions in Reckitt Benkiser India Ltd v.  Wyeth Ltd, 2013 SCC OnLine Del 1096 and Videocon Industries Limited v. Whirlpool of India Limited, 2012 SCC OnLine Bom 1171, is also misplaced as the said cases are under The Designs Act, 2000. Unlike the Copyright Act, 1957, where copyright in a defined ‘work’ arises through authorship, design rights under the Designs Act, 2000 are conferred by registration, the validity of which can be challenged in accordance with the provisions of the said Act. Copyright Act does not mandate registration for a copyright to subsist nor does registration confer any legal rights. Reliance on the decision of the House of Lords in Ladbroke (Football) Ltd. and William Hill (Football) Ltd., (1964) 1 All ER 465, is also erroneous as the question that arose in the said case was whether copyright subsists in ‘coupons’ as an ‘original literary compilation’. Relying on Section 2 of the English Copyright Act, wherein a ‘literary work’ includes any written table or ‘compilation’, the coupon was held to be a ‘compilation’ in which copyright could subsist as literary work. Court also agreed that there was substantial reproduction of the literary work in contrast to the facts of the present case where the only pleading by the Plaintiffs in respect of literary work is with regard to the registered concept note and there is nothing to even remotely indicate any reproduction of the said literary work by the Defendant.
13. Contentions raised on behalf of the Plaintiffs are as follows:-
a) Plaintiffs are the developers and operators of a unique mobile application EXCHANGE22, which incorporates the features of Fantasy Sports League and Stock Market. The idea first originated in 2010 and over the years, with hard work and toil developed into something tangible. Finally, beta version of the application was launched in August, 2019 to test the mobile app on its website https://exchange22.com/. Upon getting a positive response from the public, Plaintiff No.1 Company was incorporated on 16.09.2019 and the mobile app was officially launched on 21.11.2019.
b) Plaintiffs’ fantasy sports game is registered under the Act 1957 while registration for the detailed work named EXCHANGE22 has been applied for as a literary/dramatic work. The concept note which is the registered copyright work details working of the fantasy game including ‘Object of the Game’ and the ‘components’ therein explaining every step that a user experiences on its mobile application such as the Home page, My Portfolio page, My Balance page, the process of verifying the account and a detailed Point System with Rules and Regulations.
c) Contention of Defendant No.1 that Plaintiffs’ app is not unique or original is misplaced. The unique features of the app are :-
i) Plaintiffs give a separate price for Buy and Sell for each player, as the game allows users to sell a player even without having purchased the player first;
ii) The user can trade the players like a stock;
iii) The user can buy or sell the players;
iv) A player can be bought and sold multiple times for a match like a share and this can be repeated for multiple players;
v) The prices are pre-determined as per the analysis of the in-house analysts on a match-to-match basis;
vi) Users play on a match-to-match basis;
vii) Buying and selling is only qua that particular match and there is no carry forward;
viii) There is a separate price for each player for buying and selling which is determined by the app and is not controlled or influenced by the market forces unlike in the stock market where companies do not declare the prices and the market forces are the determining factors;
ix) Buy/Sell price is fixed for every player for a particular match, 24 hours prior to the start. The price determination is very significant and requires to be correct/accurate so as to attract the users and ensure that it is lucrative to the Plaintiffs. Alike to the said requirements, a team of analysts of Plaintiff No.1 collects, analyses and curates immense amount of data with regard to player performances, playing style, previous record including factors such as pitch, weather, calibre of the opposition team etc.
d) Plaintiffs’ mobile application is a creative expression of its concept note which is a literary work that describes the components, objectives, elements and rules of Plaintiffs’ mobile app or can be stated to be an adaptation of its literary work. Courts have recognized that a concept note is an evidence of original/novel idea and the creative expression of the literary work is protected under the Act 1957. Reliance was placed on the judgments in Zee Entertainment Enterprises Ltd. v. Gajendra Singh & Ors., 2007 SCC OnLine Bom 920 and Anil Gupta & Anr. v. Kunal Dasgupta and Ors., AIR 2002 Del 379.
e) Section 2 of the Act 1957 starts with the phrase ‘unless the context otherwise requires’ and thus the definitions given thereunder including for the word ‘adaptation’ under Section 2(a) are not exhaustive and therefore a restricted meaning ought not to be given. As a principle of statutory interpretation, the interpretation which furthers the object underlying the statute should be preferred by the Court. The Scheme of the Act 1957 is to protect the expression of original ideas by restricting their use in exact form, from adaptation or alteration. Reliance was placed on the following judgments:-
i) State of Gujarat v. Chaturbhuj Manganlal, (1976) 3 SCC 54.
ii) Kanwar Singh and Others v. Delhi Administration, (1965) 1 SCR 7.
iii) N.K. Jain & Others v. C.K. Shah & Others, (1991) 2 SCC 495.
f) Plaintiffs seek protection of their copyright in GUI of the mobile application. GUI is an ‘artistic work’ and capable of protection under the Act 1957. Government of India’s stated position is that GUI is protectable as an artistic work which is evident from the website of Ministry of Electronics and Information Technology (‘MEITY’), wherein it is stated that the ‘look and feel’ of a GUI is protectable under the Act 1957. Arguendo, even if GUI is taken as a component of a computer programme, it is an underlying artistic work which exists independently. Each frame, image, arrangement of icons, menus, etc. exists as an independent artistic work and even the structure, sequence and organization of Plaintiffs’ App is protectable under the Act 1957. Reliance was placed on the following judgments :-
i) Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222.
ii) Broderbund Software, Inc. v. Unison World, 648 F. Supp. 1127.
iii) Maraekat Infotech Ltd. v. Mr. Naylesh V. Kothari and Others, 2016 SCC OnLine Bom 2369.
g) Defendants have substantially copied the GUI, which is evident from the screenshots produced by the Plaintiffs and have deceitfully not produced screenshots of some pages selectively such as ‘Portfolio Page’, ‘Buy Player Page’, ‘Sell Player Page’, which on being viewed together makes it clear that Defendants have substantially copied the GUI of the Plaintiffs.
h) Plaintiffs have expended huge sums of money on product development, advertising and media costs in developing their brand name and the mobile app EXCHANGE22. Expenditure incurred on software development and maintenance is Rs.96,00,912/- and that on advertising etc. is Rs.7,79,56,657/- for the years 2019-2022. Plaintiffs’ app has 4,57,911 users as in May, 2022 and new users keep getting added everyday with about 32,000 daily active users at any given point of time with an average engagement of 1.10 hours. In a short span of three years, Plaintiffs have carved out a distinctive niche for themselves in the world of fantasy gaming leagues.
i) Defendants, on the other hand, a day before the launch of the IPL on 25.03.2022, launched an updated version of their Fantasy Sports League Mobile App MYFAB11 in the form of a new feature titled ‘STOCKS’ by not only copying the concept but also the working, features and execution of Plaintiffs’ Buy/Sell interface. Defendants are also engaged in unauthorized and illegal act of accessing and misappropriating the information/data in Plaintiffs’ mobile app to cause wrongful loss to the Plaintiffs by diverting the traffic, without their consent. In fact, Defendants brazenly copied the Buy/Sell price of each player for each match by adding a pre-determined random number. This is evident on comparing the Buy/Sell price of a player. Plaintiffs make their Buy/Sell portal available for use 24 hours before the actual match is scheduled. The modus operandi adopted by the Defendants is that they change the match statistics on their app a few hours after the Plaintiffs update their data pertaining to the players, according to a set standard pattern, which requires no application of mind, skill, expertise, expenditure or analysis and this pattern is repeated for every player. Defendants merely pick up the Plaintiffs’ player index, add flat rates across the board and release the index on their app. They have neither the manpower nor the skill to formulate and apply the algorithm as the Plaintiffs and thus they never release their own index before the Plaintiffs. The only response to the illegal activities in the application filed under Order XXXIX Rule 4 CPC is that the Buy/Sell price is merely co-incidental. It is unbelievable that the co-incidence occurs for all players and all matches.
j) Stand of Defendant No.1 that the Plaintiffs have no copyright in the GUI of its mobile app is misconceived. GUI is an artistic work and Defendants have substantially copied Plaintiffs’ GUI, which is evident from the screenshots produced by the Plaintiffs, comparing the two applications. As an illustration, the ‘Point System’ has nine parameters, all of which have been copied by the Defendants. As for the ‘Rules’, Defendants have copied Rule 5(a), (b), (c), (e), (i), (k), (l) and (q) verbatim while Rule 5 (d), (h) and (m) have been copied with minor variations. Additionally, Defendants have copied the manner of depicting matches, time left, abbreviations of the names, including the icons at the bottom. Defendants’ attempt to come as close as possible to Plaintiffs’ application is to gain unfair advantage and is dishonesty. It is true that copyrights not dependent on registration, however, the moot point is that honesty/ dishonesty is the fundamental principle that guides the law in the field of intellectual property rights, be it the trademarks law, where similarity/deceptive similarity is seen or the Designs Act, where the test is copy of the registered design or passing off action wherein misrepresentation is frowned upon. Dishonesty is a species of unfair competition and in case the Court comes to a conclusion that the act of the Defendants is dishonest, an equitable order of injunction must follow. The present case is a classic case of dishonesty of the Defendants and thus copyrights of the Plaintiffs ought to be protected.
k) It is vehemently denied that Plaintiffs have made any misrepresentation in the plaint or otherwise to obtain the ex parte injunction order. Defendants are misleading the Court by reading a single sentence or a stray averment in the Plaint, totally out of context, to create a wrong impression. Plaintiffs have clearly described their App as first of its kind and unique and this is in the context of its unique features, which do not exist in any other Mobile App i.e. having different Buy/Sell prices for the same player. Pleadings must be read, interpreted and construed as a whole and not dissected. Defendants have wrongly averred that there are various gaming platforms which existed prior to the Plaintiffs. Out of the nine platforms, referred to by the Defendants, applications like Sixer, JoinMKT, Trade Stars and Prediction Strike are subsequent to the launch of the Plaintiffs’ App. Websites such as PlayerSX, TradeFan, Wall Street Sports, GSX.com did not have a mobile application and Cricstocks App although a .apk file cannot be accessed and therefore, it cannot be determined whether it followed a similar concept. These differences from the third party apps have been detailed by the Plaintiffs in a tabular form for a comparison and are as follows:-

S. No.
Third Party App
Distinguishable features from the Plaintiffs’ App

Remarks
1.
Sixer
In the said app, the user can hold the stock for a player for more than one match. Whereas the Plaintiffs’ app allows the players to buy/sell stocks only for the duration of the match. At the end of the match the player’s portfolio is empty again.

In the said app, there is only one value of the player. Whereas the Plaintiffs’ app has different prices for Buy and Sell.

Defendants’ reliance on the screenshot from Wayback Machine to show that the app was available in 2018 is wrong. As on 21.11.2019 the website www.sixergame.com showed that the app is ‘Coming Soon’. Reference is placed on the screenshot below.

The Sixer app was launched in the year 2020, subsequent to the Plaintiff.

2.
Join MKT
In the said app, all the players are initially valued at $1 and later the price of the player is guided by the market forces of demand and supply. Whereas Plaintiffs’ Buy and Sell value of the players are predetermined by the Plaintiffs’ in-house team.

The Join MKT app was launched on 10.09.2020 on iOS, subsequent to the Plaintiff.
3.
Trade Stars
In the said app, the user can hold the stock for a player for more than one match. Whereas the Plaintiffs’ app allows the players to buy/sell stocks only for the duration of the match. At the end of the match the player’s portfolio is empty again.

In the said app, there is only one value of the player. Whereas the Plaintiffs’ app has different prices for Buy and Sell.

The Trading Layer of the Trade Stars was launched in August 2021, subsequent to the Plaintiff.
4.
Prediction Strike
In the said app, all the players are initially valued by the developer and thereafter price of the player is guided by the market forces of demand and supply. Whereas the Plaintiffs’ Buy and Sell value of the players are predetermined by the Plaintiffs’ in-house team on a match to match basis.

The Prediction Strike app was launched in September 2019, subsequent to the Plaintiff.
5.
Player SX
In the said website, all the players are initially valued by the developer and thereafter price of the player is guided by the market forces of demand and supply. Whereas the Plaintiffs’ Buy and Sell value of the players are predetermined by the Plaintiffs’ in-house team on a match to match basis.

There is no mobile app for this website. A user has to log in to the website to access the services. Additionally, the website is only available for NHL and NFL games.
6.
TradeFan
The users have to build a team in this website and the users can join a tournament anytime, even after the start of the same. Whereas a user does not have to build a team in the Plaintiffs’ app and there is no concept of a tournament in the Plaintiffs’ app.
There is no mobile app for this website. A user has to log in to the website to access the services. Additionally, the website is only available for NHL, NBA, MLB and NFL games.
7.
Wall Street Sports
In the said website, all the players are initially valued by the developer and thereafter price of the player is guided by the market forces of demand and supply. Whereas the Plaintiff’s the Buy and Sell value of the players are predetermined by the Plaintiff’s in-house team on a match to match basis.
The Wall Street Sport was sold to Sandbox.com and the game Wall Street Sports ceased in the year 2002.

There was no mobile app for this website.
8.
World Cup Cricket Stock Market (CricStocks)
In the said app, the user can hold the stock for a player for more than one match. Whereas the Plaintiffs’ app allows the players to buy/sell stocks only for the duration of the match. At the end of the match the player’s portfolio is empty again.
The app was built only for Cricket World Cup 2015. The app cannot be accessed as on 4.05.2022.
9.
TheGSX.com
In the said website, the user can hold the stock for a player a whole season of IPL. Whereas the Plaintiffs’ app allows the players to buy/sell stocks only for the duration of the match. At the end of the match the player’s portfolio is empty again.
The said website is not accessible.

There was no mobile app for this website.

l) Unauthorized misappropriation of Plaintiffs’ data amounts to an act of unfair competition, which is the overarching concept flowing through the entire gamut of intellectual property rights, including copyright. Paris Convention, to which India is a signatory, offers definition of unfair competition as does the Geographical Indications of Goods Act, 1999. Defendants cannot be permitted to make unauthorized use of Plaintiffs’ efforts and use it as a ‘spring board’ to gain an unfair competitive advantage over the Plaintiffs.
m) Plaintiffs had made out a prima facie case for grant of ex parte ad-interim injunction and after hearing them and examining the documents, ex parte injunction was rightly granted by the Court. Balance of convenience lies in favour of the Plaintiffs as the stock feature on the Plaintiffs’ app existed prior to Defendants’ stock feature, which the latter launched only on 25.03.2022. Defendant No. 1 has attempted to create a false sense of urgency on account of the IPL matches without apprising the Court that their application offers the stock and the regular fantasy sports features for every professional cricket match played in a calendar year with few exceptions and it is Defendant No. 1’s own admission that stock feature is a small part of its application, which is mainly concerned with fantasy sport element. For all the aforestated reasons, the ex parte injunction order deserves to be confirmed and the application seeking vacation of stay deserves to be dismissed.
14. I have heard learned Senior Counsels for the parties and examined their rival contentions.
15. Being developers and operators of Fantasy Sports League Mobile App EXCHANGE22, Plaintiffs approached this Court seeking injunction against Defendants from infringing their copyrighted work, amongst other reliefs. The claim to fame by the Plaintiffs is that they have devised a first of its kind fantasy league gaming platform for cricket, football, basketball and kabaddi, where the user plays the game as a real game with additional unique trait of share market trading, which allows the user to buy/sell the players like shares in the market.
16. Before proceeding further, one would need an insight into the concept of ‘Fantasy Sports’. From a collective reading of articles in the public domain, judicial precedents and the pleadings in the plaint, it emerges that Fantasy Sports are digital sports engagement platforms based on real life sports matches i.e. online gaming on the internet which allows the users or fans of the sport concerned to build virtual teams based on real players participating in the upcoming matches. The events/leagues are centred around real world sporting events based on statistical data of the performance of the sports persons. This allows the users to emulate the role of a coach or a manager of a team so as to be able to change the player by adding or dropping as per choice. Participation in the fantasy sports games entails payment of an entry fee, after which the user enters the arena of the online event and earns points and eventually may win or lose. The idea of fantasy games albeit originated in India in the mid-1990s, in USA the idea goes back to 1960s.
17. As this matter also concerns the GUI, a little backdrop to this concept is also imperative. GUI is a digital interface in which a user interacts with graphical components such as icons, buttons and menus. GUI is a visual component different from the underlying codes i.e. source code and object code and is a feature in various devices such as computers, smart phones etc. In other words, ‘user interface’ refers to the underlying non-graphic code of a software programme, while the term ‘GUI’ or ‘graphical user interface’ refers to the visual elements, i.e., the ‘look’ of the program. Upon interacting with a GUI i.e. the graphics on the screen, the GUI instantly communicates through the software’s underlying code, which then performs the desired function and from the time the user interacts and executes a command to the moment the computer performs the function, there are multiple layers of interactions taking place within the software.
18. Broadly understood, case of the Plaintiffs, as argued, is that they are developers and operators of a unique Mobile Application EXCHANGE22, which incorporates features of a Fantasy Sports League and stock market and it is the share market trading unique trait which sets the gaming application apart from the prevalent fantasy gaming applications and is therefore first of its kind Fantasy League Gaming Platform for cricket, football, etc. Plaintiff No.2 developed a detailed ‘concept note’ which includes features for working of the fantasy games such as ‘object of the game’, ‘components’, ‘home page’, ‘my portfolio page’ and the concept note is registered under the Act 1957 being a Literary/Dramatic work. Plaintiffs also claim protection in the GUI of their application as an ‘artistic work’ besides theft of their curated data and allege unfair competition by the Defendants. In the alternative, it is argued that even if GUI is taken to be a component of a computer programme, it is an underlying artistic work, which exists independently as each frame, image, arrangement of icons, menus, etc. are independent artistic works.
19. Defendants, on the other hand, have sought vacation of the interim injunction order on multifarious grounds by arguing that there is gross suppression of material facts and misrepresentation in the plaint as Plaintiffs have predicated their case on being originators of a unique idea of trading of sports players which sets them apart, which is contrary to their own admission that they are ‘India’s first sports stock exchange’ while documents filed by Defendants show that trading sports players as part of fantasy gaming existed in public domain long before Plaintiffs’ application. It is also urged that after the stand of the Defendants came on record, Plaintiffs have repeatedly tried to shift their stands and are now attempting to bring out alleged differences in the features of their app qua Defendants’ mobile app. Plaintiffs are also setting up a new case of infringement with respect to ‘functionality’ of Defendants’ app on the basis of functionality in the registered literary work, which is impermissible in law, as there is no copyright in an idea. There are no pleadings in the plaint as to how Defendants’ app is a substantial reproduction of the registered literary work i.e. concept note and the only comparison that is repeatedly drawn is by taking screenshots of the User Interfaces of the apps of the rival parties. It was also emphasised that GUI is not ‘work’ under the Act 1957 and therefore, in terms of Sections 13 and 16 of the Act 1957, there can be no copyright in a GUI per se. As a desperate attempt, a case was also set up during arguments that Plaintiffs’ mobile app is an ‘adaptation of the work’ in terms of Section 14(a)(vii) of the Act 1957, which is wholly outside the pleadings and in any event, is an argument beyond the provisions of the Act 1957, since adaptation in relation to literary work as defined in Section 2(a)(ii) and (iii) of the Act 1957 shows that a mobile app is not envisaged as an adaptation of literary work.
20. In order to appreciate the arguments of the parties, it would be first necessary to discuss the provisions of the Act 1957 and the judicial precedents on the subject. Relevant provisions are as follows:-
“2. Interpretation –
(ffc) “computer programme” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result;”
(o) “literary work” includes computer programmes, tables and compilations including computer [databases];”
(y) “work” means any of the following works, namely:—
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording;”
13. Works in which copyright subsists.—(1) Subject to the provisions of this section and 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 recording].”
14. 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) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.
(c) in the case of an artistic work,-
(i) to reproduce the work in any material form including—
(A) the storing of it in any medium by electronic or other means; or
(B) depiction in three-dimensions of a two- dimensional work; or
(C) depiction in two-dimensions of a three- dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film; (v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);”

Section 51: When Copyright infringed. – Copyright in a work shall be deemed to be infringed –
(a) when any person without a license from the owner of the copyright, or the Registrar of Copyright, or in contravention of the conditions of a licence granted or any conditions imposed by a competent authority under the Act:
(i) does anything, the exclusive right to do which is conferred upon the owner of the copyright, or
(ii) permits for profit any piece to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.”

21. The Supreme Court in Eastern Book Company and Others v. D.B. Modak and Another, (2008) 1 SCC 1, analysing the aforesaid provisions observed that subject to Section 13 and other provisions of the Act 1957, there shall be a copyright throughout India in original literary work, dramatic, musical and artistic work, cinematographic films and sound recordings and for copyright protection, all literary works have to be original. Broadly speaking, there would be two classes of literary works: (a) primary i.e. works not based on existing subject matter; and (b) secondary or derivative works i.e. works based on existing subject matter. ‘Literary work’ also includes computer programmes including computer databases. The word ‘original’ was also subject matter of interpretation by the Supreme Court and it was observed that the expression ‘original’ does not mean that the work must be expression of original or inventive thought since Copyright Act is not concerned with originality of ideas but is concerned with expression of thought and in case of literary work with the expression of thought in print or writing. The Act 1957 envisages that while the work may not be novel but must not be copied from another work i.e. it should originate from the author. Relevant paragraphs are as follows:-
“20.  Subject to the provisions of Section 13 and the other provisions of the Act, there shall be a copyright throughout India in original literary work, dramatic, musical and artistic works, cinematograph films and sound recording, subject to the exceptions provided in sub-sections (2) and (3) of Section 13. For copyright protection, all literary works have to be original as per Section 13 of the Act.
21.  Broadly speaking, there would be two classes of literary works: (a) Primary or prior works: these are the literary works not based on existing subject-matter and, therefore, would be called primary or prior works; and (b) Secondary or derivative works: these are literary works based on existing subject-matter. Since such works are based on existing subject-matter, they are called derivative works or secondary works.
22.  Work is defined in Section 2(y) which would be a literary, dramatic, musical or artistic work; a cinematograph film; and a sound recording. Under Section 2(o), literary work would include computer programs, tables and compilations including computer databases.
xxx xxx xxx
32. The word “original” does not mean that the work must be the expression of original or inventive thought. The 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; and as regards compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation. The words “literary work” cover work which is expressed in print or writing irrespective of the question whether the quality or style is high. The commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection will not be entitled to copyright. The word “original” does not demand original or inventive thought, but only that the work should not be copied but should originate from the author. In deciding, therefore, whether a work in the nature of a compilation is original, it is wrong to consider individual parts of it apart from the whole. For many compilations have nothing original in their parts, yet the sum total of the compilation may be original. In such cases the courts have looked to see whether the compilation of the unoriginal material called for work or skill or expense. If it did, it is entitled to be considered original and to be protected against those who wish to steal the fruits of the work or skill or expense by copying it without taking the trouble to compile it themselves. In each case, it is a question of degree whether the labour or skill or ingenuity or expense involved in the compilation is sufficient to warrant a claim to originality in a compilation.”

22. The Supreme Court, relying on the most cited judgment in University of London Press Limited v. University Tutorial Press Limited, [1916] 2 Ch 601, in the context of ‘originality’ held as follows:-
“36. University of London Press Ltd. v. University Tutorial Press Ltd. [(1916) 2 Ch 601] is perhaps the most cited judgment regarding originality. Originality was held to be not required to be novel form but the work should not be copied from other work, that is, it should be original. The judgment was based on the following facts: certain persons were appointed as examiners for matriculation examination of the University of London on a condition that any copyright in the examination papers should belong to the University. The University assigned the copyright to the plaintiff company. After the examination, the defendant company brought out a publication containing a number of the examination papers, including three of which had been set by two examiners appointed by the University. The plaintiff company brought a case of copyright infringement against the defendant company. It was argued that since the setting of the papers entailed the exercise of brainwork, memory, and trained judgment, and even the selection of passages from other author’s work involved careful consideration, discretion and choice they constituted original literary work. On the other hand, the defendants claimed that what they had done was fair dealing for the purposes of private study which was permissible under the law. The Court agreed that the material under consideration was a literary work. The words “literary work” cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word “literary” seems to be used in a sense somewhat similar to the use of the word “literature” in political or electioneering literature and refers to written or printed matter. With respect to the originality issue, the Court held that the term “original” under the Act does not imply original or novel form of ideas or inventive thought, but the work must not be copied from another work—that it should originate from the author.”

23. It is trite that there can be no copyright and hence no exclusivity or monopoly in an idea and only an expression of an idea, which is original, can be protected. This aspect of discussion cannot be complete without relying on the most cited judgment on the idea-expression dichotomy in the case of R.G. Anand (supra), relevant paragraphs of which are as follows:-
“34. ……Similar observations were made in the case of Twentieth Century Fox Film Corporation v. Stonesifer [140 F 2d 579 (1852)] which are as follows:
“In copyright infringement cases involving original dramatic composition and motion picture productions, inasmuch as literal or complete appropriation of the protected property rarely occurs, the problem before the court is concrete and specific in each case to determine from all the facts and circumstances in evidence whether there has been a substantial taking from an original and copyrighted property, and therefore an unfair use of the protected work…. The two works involved in this appeal should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator…. We find and conclude, as did the court below, that the numerous striking similarities in the two works cannot in the light of all the evidence be said to constitute mere chance. The deduction of material and substantial unlawful copying of appellee’s original play in appellant’s motion picture is more in consonance with the record and with the probabilities of the situation therein disclosed.”
This authority lays down in unmistakable terms the cases where an infringement of the copyright would take place and as pointed out that before the charge of plagiarism is levelled agai