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Braithwaite, Burn and Jessop Construction Co. Vs. Trustees of the Port of Madras - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtChennai High Court
Decided On
Reported in(1956)2MLJ486
AppellantBraithwaite, Burn and Jessop Construction Co.
RespondentTrustees of the Port of Madras
Cases ReferredChabot v. Davies
Excerpt:
- - the plaintiffs had heard late in 1952, or early in 1953, about the proposals of the madras port trust for the harbour expansion, and naturally wanted to try their chance and get this big and interesting contract for themselves. 11 allowing of alternative designs, and having a better and more economic design in mind, p. any deviations from any of the stipulations of the tender which the contractor wants to adopt must be clearly stated in the tender. 9. the committee appointed by the government of india considered all the tenders, and finally recommended the giving of the contract to messrs. 1 had known clearly that other tenderers would be allowed to re-quote their terms on the plan and lay-out in exhibit p-27, based on exhibit p-26 (b), which was a. plaintiffs had no copyright even.....panchapakesa ayyar, j.1. this is an appeal by the plaintiffs in c.s. no. 150 of 1955, on the file of this court, against the judgment and decree of our learned brother, rajagopala ayyangar, j., dismissing that suit with costs.2. the facts were briefly these : in 1951 or so, the government of india entertained the idea of extending the madras harbour by constructing an r.c. jetty at north quay and ore and coal berths, for importing coal and exporting iron and manganese ore, etc., at a cost of more than a crore of rupees. mr. srinivasan, the chief engineer, madras port trust, prepared various plans and specifications from the year 1951, modifying them from time to time, as the works involved a huge investment and required very careful consideration regarding efficiency, economy, etc. he.....
Judgment:

Panchapakesa Ayyar, J.

1. This is an appeal by the plaintiffs in C.S. No. 150 of 1955, on the file of this Court, against the judgment and decree of our learned brother, Rajagopala Ayyangar, J., dismissing that suit with costs.

2. The facts were briefly these : In 1951 or so, the Government of India entertained the idea of extending the Madras Harbour by constructing an R.C. Jetty at North Quay and ore and coal berths, for importing coal and exporting iron and manganese ore, etc., at a cost of more than a crore of rupees. Mr. Srinivasan, the Chief Engineer, Madras Port Trust, prepared various plans and specifications from the year 1951, modifying them from time to time, as the works involved a huge investment and required very careful consideration regarding efficiency, economy, etc. He prepared those plans, including a plan, Exhibit D-1, dated 28th July, 1952, in consultation with Messrs. Rendel, Palmer and Pritton, London, a leading firm of consulting engineers, who have been consulting engineers of the Madras Port Trust for more than half a century. As is usual in such cases, some ideas in the first plan were altered in the subsequent plans. For instance, the lay-out of the ore berth and coal berth and the ore hoppers, and the length and breadth of the suggested constructions differed, and the final plan and lay-out, Exhibit P-26 (a), enclosed along with the notice calling for tenders, differed somewhat from the original plan and lay-out, as also the breadth, etc. The Government of India were, of course, the authorities to sanction the estimates, and approve of the final selected tender, and to pass final orders regarding all vital things connected with the extensions. By their letters, dated 30th October, 1953 and 10th February, 1954, to Mr. G. Venkateswaran, I.C.S., the Chairman of the Madras Port Trust, they sanctioned the construction of R.C. Jetties at North Quay at an estimated cost of Rs. 30,50,000 the construction of ore and coal berths (South Quays III and IV) at an estimated cost of Rs. 36,25,000 and the construction of an approach head to the ore and coal berths at an estimated cost of Rs. 40,30,000. Tenders were called for by the Madras Port Trust so as to reach the Chief Engineer, Madras Port Trust, by 3 P.M. on 15th September, 1954. Along with the tender notice, a copy of the last revised plan prepared by the Chief Engineer, Madras Port Trust, Exhibit P-26 (a), showing the lay-out as tentatively proposed, was enclosed, as also an elaborate annexure stating the conditions of the tender. This annexure ran to four typed pages, and contained 17 conditions. Conditions No. 11 originally ran as follows:

Should the contractor wish to submit for the consideration of the Board any alternative type of design for this work, in whole or in part, a statement of the salient features of the same, including design and details, together with schedule of quantities and rate for such alternative schemes, partly or wholly, with detailed drawings, should accompany the tender.

3. The Government of India appointed Mr. Srinivasan, Chief Engineer, Madras Port Trust, Mr. Nanjundiah, Chief Engineer, Visakhapatnam Port and Mr. Ganapathi, Chief Engineer, Kandla Port, to scrutinise and report on the tenders.

4. Seven tenders were received, all from leading contractors, one of them being from the plaintiffs, the Braithwaite, Burn and Jessop Construction Company Limited, Calcutta, a leading firm of contractors, who had Braithwaite Engineering Company, London, as their consulting engineers. The plaintiffs had heard late in 1952, or early in 1953, about the proposals of the Madras Port Trust for the Harbour expansion, and naturally wanted to try their chance and get this big and interesting contract for themselves. In August, 1953, P.W. 1, Mr. Massarik, the Chief Engineer of the Plaintiff firm, went to London on leave, and had a discussion with Mr. Brickley, the Chief Engineer of Braithwaite Engineering Company, London, and with the Senior Assistants, Gates, Benjamin, etc., regarding the proposed extension to the Madras Harbour. He also visited the Madras Harbour in 1953 to inspect the site of the proposed extensions, and visited the Cochin Harbour also once or twice, evidently in order to be conversant with the conditions of harbours in general. He discussed with the Madras Port Trust Engineering staff about the proposed work. Just after the tenders were called for, Mr. Ostrowski, the Head of the Foundation Department of Braithwaite Engineering Company, came to Madras and inspected the Madras Harbour along with P.W. 1 for two or three days. P.W. 1 and he inspected the tender papers at the Madras Port Trust Office, and saw a copy of the tender documents in the Chief Engineer's Office and read through them. Exhibit D-1, an earlier plan prepared by Mr. Srinivasan on 28th July, 1952, was hanging on the wall of the discussion room then, though P.W. 1 said that he did not notice it or scrutinise it. Seeing the original condition No. 11 allowing of alternative designs, and having a better and more economic design in mind, P.W. 1 and Mr. Ostrowski asked the Chief Engineer, Mr. Srinivasan, for permission to submit an alternative design and to quote for an alternative lay-out. Thereupon, Mr. Srinivasan and the Port Trust Authorities told P.W. 1 and Mr. Ostrowski that they could not make any fundamental alteration or modification to the plan and lay-out in Exhibit P-26 (a) attached to the tender notice, but the slight modifications might be suggested, if thought fit, to the official lay-out. Condition No. 11 was then altered to read as follows:

Should the tenderer wish to submit for the consideration of the Board any alternative type of designs for this work, in whole or in part, or any slight modification to the official lay-out, which, without materially affecting the Port's requirements, will result in economy or be otherwise advantageous to the Port, a statement of the salient features of the same, including the design, details, together with schedule of quantitites and rate for such alternative scheme, partly or wholly, with detailed drawings, should accompany the tender.

5. Condition 16(a) was also added to the Annexure, in consequence, and it ran as follows:

Any deviations from any of the stipulations of the tender which the contractor wants to adopt must be clearly stated in the tender. Otherwise, it will be construed that the contractor will strictly conform to the terms set out in the Trust's tender papers.

6. P.W. 1 and Mr. Ostrowski returned to Calcutta, and, according to P.W. 1, had a further discussion about the lay-out in Exhibit P-26 (a), the Port Trust plan and the modification which would conduce to greater efficiency and economy. P.W. 1 went again to London in July, 1954, and had a discussion with Mr. Brickley and other Senior Engineers about the modified lay-out he had thought of. As Mr. Ostrowski was then in Rome on business, P.W. 1 went to Rome, met him and discussed with him about the alternative plan and lay-out in Exhibit P-26 (b), the modified plan and lay-out he had prepared after preliminary discussions. After discussing it with Mr. Ostrowski, he went back to London and discussed the modified construction and design in Exhibit P-26(b) finally with Mr. Brickley and other Senior Engineers in the light of the discussion with Mr. Ostrowski. After all this, on 11th September, 1954, he submitted a tender enclosing 13 drawings, one of which was the alternative plan and lay-out, Exhibit P-26 (b), to the Chief Engineer, Madras Port Trust.

7. According to P.W. 1, the main difference between the plan Exhibit P-26 (b), which he submitted along with the tender, and the Port Trust plan Exhibit P-26 (a), were three. The first was that in the original Port Trust plan, Exhibit P-26 (a) both the coal berth and the ore berth were on one and the same structure jutting out into the harbour, whereas in Exhibit P-26 (b) the plaintiff's plan, the coal berth was on one spur, and the ore berth in a different location, thereby making it possible to instal two railway systems for carrying the ore to the harbour and taking the coal away from the harbour, at one and the same time, and preventing any danger of derailment on the original common approach, causing a serious handicap both to the ore and the coal clearance. The second was that whereas the Port Trust plan proposed to build the ore hoppers on the pier over deep waters and would thus require heavy strengthening of the pier and heavy cost on that, the plan of the plaintiffs had placed these ore hoppers on the sand-filled ground, close to the breakwaters, and would be very cheap to construct and would not require any special construction to support the weight. The third difference was that in the Port Trust plan, Exhibit P-26 (a), the width of the spur was 66 feet whereas in the plaintiff's plan, Exhibit P-26 (b), the width was reduced to 54 feet which was rendered possible by resorting to the use of mobile coal hoppers instead of fixed coal hoppers which the Port Trust had proposed. The mobile coal hoppers were one of the most recent innovations in harbour engineering practice and were, according to P.W. 1, put into effect for the first time by the Braithwaite Company in one of the harbour works in Izmit in Turkey, and would save an enormous sum of money, as compared with the fixed coal hoppers. According to P.W. 1, the entire saving by the improvements suggested in Exhibit P-26 (b) would amount to over thirty lakhs, compared with the cost of the construction and lay-out envisaged in Exhibit P-26 (a). P.W. 1 admitted that the plaintiffs had referred constantly to the plan and lay-out in Exhibit P-26 (b) as a slight modification of the plan and lay-out in Exhibit P-26 (a) but according to him, that term was only put in euphemistically in obedience to the insistence of the Port Trust Authorities, on condition that 'there should be only a slight modification' and did not represent the real facts.

8. P.W. 1 received some letters from the Chief Engineer, Madras Port Trust, about the plaintiff's tender and lay-out and finally had an interview with the Port Trust Committee on the 16th and 17th November, 1954. At that meeting, he found that the Port Trust had modified its original plan and lay-out in Exhibit P-26 (a) and had produced the blue-print Exhibit P-27. According to him, he noticed at once that Exhibit P-27 was a copy of the plaintiff's plan and lay-out in Exhibit P-26 (b), but he did not tell the Port Trust Committee so, because he thought it was understood. He simply asked the Port Trust Committee, 'Does it mean that the B.B.J., (the plaintiffs) are getting the contract?' He was told that it did not mean that, and that the Committee would consider all the tenders for constructing the work as per Exhibit P-27, and that it was the Port Trust to accept the plaintiffs' tender or not, and yet P.W. 1 did not protest and say that Exhibit P-27 was a copy of the plaintiffs' plan, Exhibit P-26 (b), and that therefore, it should not be used by any other contractor, whose tender might be accepted instead of the plaintiffs'. P.W. 1 wanted a lump sum payment of Rs. 1,96,000 to cover the extra costs in overheads, resulting from the reduction of the work and the inability of the Port Trust to find land for housing the firm's labour. Sri Ganapati, on behalf of the Port Trust, drew the attention of the plaintiffs to the effect that their tender was not the lowest and that any such additional compensation would be to their disadvantage, in comparison with other tenders. After further consideration, P.W. 1 agreed to reduce the additional compensation to Rs. 1,50,000 consisting of Rs. 1,20,000 for the reasons stated, and Rs. 30,000 for the three out of seven badges which could riot be supplied by the Port Trust. He was informed that the plaintiffs' tender would be considered on its merits.

9. The Committee appointed by the Government of India considered all the tenders, and finally recommended the giving of the contract to Messrs. Uttam Singh Duga and Company, Limited, New Delhi, for Rs. 56,04,273 exclusive of the-cost of the materials and services to be supplied by the Port Trust, The construction of temporary approaches to the wells, at the extremities of the approach head, costing Rs. 1,50,000, was also provided for outside the contract. Sri G. Venkateswara Iyer, I.C.S., Chairman of the Port Trust, wrote a letter Exhibit P-17 (a), to the Ministry of Transport, New Delhi, on 7th January, 1955, recommending the tender of Messrs. Uttam Singh Duga and Company for acceptance as per the resolution of the Committee dated 31st December, 1954. He added that two trustees had dissented from the resolution to give the contract to Messrs. Uttam Singh Duga and Company, Limited, as they were of the view that the contract should be awarded to the plaintiffs though their tender was higher.

10. The plaintiffs sent a notice, Exhibit P-19, dated 18th February, 1955, alleging that the Port Trust's plan lay-out in Exhibit P-27 was a true copy of their own plan and lay-out in Exhibit P-26 (b), and that if P.W. 1 had known clearly that other tenderers would be allowed to re-quote their terms on the plan and lay-out in Exhibit P-27, based on Exhibit P-26 (b), which was a. slight modification of the Port Trust plan in Exhibit P-26 (a), he would have stated that any attempt to allow other contractors to work on the plaintiffs' design would be strongly resisted by the plaintiffs as illegal and unethical, and that the plaintiffs had learnt that a recommendation had been made to give another contractor this contract, and that he had been asked to carry out the work as per the plan Exhibit P-27 which was more or less identical with Exhibit P-26 (b). The plaintiffs added that they had a copyright in the plan, and that the Port Trust should not produce or reproduce, or authorise the production or reproduction of Exhibit P-26 (b) or any substantial part thereof, in any material form whatsoever, without their consent, and that if the Port Trust did so, it would be infringing the plaintiffs' copyright in Exhibit P-26 (b), and the plaintiffs would be forced to sue the Madras Port Trust for an injunction and or damages. The Chief Engineer, Madras Port Trust, replied, under Exhibit P-20, dated 5th March, 1955, that the Port Trust was doing nothing illegal or unethical in entrusting the contract to another contractor, and in asking him to carry out the work as per Exhibit P-27.

11. Following up the notice, the plaintiffs filed C.S. No. 150 of 1955 in this Court on 29th April, 1955, for an injunction restraining the defendants, their servants, agents or employees, from producing or reproducing or authorising or causing the production or reproduction of the plaintiffs' plan, Exhibit P-26 (b), or any substantial part thereof, in any material form whatsoever, without the consent of the plaintiffs, or any plan similar thereto, or a colourable imitation thereof, or from otherwise infringing the plaintiffs' copyright in Exhibit P-26 (b), and for damages and costs. They valued the suit for injunction at Rs. 1,500 and valued it for damages at Rs. 2,50,000 the basis for this being 2 1/2 per cent, of the estimated cost of one crore said by P.W. 1 to be the cost of preparing the plan Exhibit P-26 (b), including travel expenses and the consultation fees.

12. On 9th May, 1955, during the summer recess of this Court, the plaintiffs applied by Application No. 1882 of 1955 for an interim injunction restraining the defendants, their servants, etc., from proceeding with the construction of the harbour extensions as per the plan and lay-out in Exhibit P-27. On 10th May, 1955, one Of the Vacation Judges, Krishnaswami Nayudu, J., granted an ex parte order of interim injunction against the defendants, because it was represented to him that. Under the Indian Copyright Act, the owner of a copyright would not be entitled to obtain an injunction to restrain the construction of a building or structure, or to order its demolition, where the construction of the building had already commenced, and it was apprehended by the plaintiffs that the work would be commenced soon by the defendants.

13. The defendants strenuously contested the application on the-ground that the; plaintiffs had no copyright even in Exhibit P-26 (b), and that their copyright in it, if any, was not infringed by Exhibit P-27, and that the Copyright Act rule regarding the injunction concerning buildings, if they had already been commenced, applied only to any copyright in any 'architectural work', and not to any copyright in any alleged 'literary work', like Exhibit P-26 (b) and that the extension of the harbour, a work in three dimensions could never be an infringement of an alleged literary work in two dimensions like Exhibit P-26 (b), and that it was a matter of urgent public importance, and final decisions had been reached in the matter by the Government of India after considering over it carefully for four years and the work was ready to be started and any delay in the construction of the jetty and the other extensions would cause grave inconvenience to the ships touching the harbour, and to the commercial public, and that the interim injunction should be cancelled, and the suit posted early for disposal.

14. Krishnaswami Nayudu, J., disposed of Application No. 1882 of 1955 on 15th June, 1955. He held that, on the materials placed before him, the plaintiffs had established prima facie a copyright in Exhibit P-26 (b) and infringement thereof by Exhibit P-27. But he dismissed the application for a temporary injunction, and vacated the interim order of temporary injunction already passed, and directed the suit to be heard at an early date, namely in the first week after the reopening. His reason for refusing the temporary injunction and for dissolving the interim order of temporary injunction was given in the following two paragraphs:

Injunction being the normal remedy, the question arises whether the plaintiffs should be granted a temporary injunction pending the suit. Injunction is granted to prevent the continuance of infringement in cases where there is a continuing injury. The work in respect of which copyright is claimed in this case is not a drama or a novel or a musical composition, where the infringement by producing or utilising them and distributing copies, will affect the reputation of the author of the original work and will also cause substantial damage to him by placing in the market something which is not the work of the original author and thus affect the intrinsic value of the original literary work. The plaintiffs have prepared a plan for the extension of the Madras Harbour, and the plan which is prepared is not one, copies of which could be utilised by the defendants for the purpose of extending other harbours; nor is it the intention of the defendants to use it for purposes other than, for the extension of the Madras Harbour. Plan A [present Exhibit P-26 (b)] is, therefore, for a definite and specific purpose, namely, the extension of the Madras Harbour. The nature of the plan is such that it cannot be utilised as such by the defendants even if they intend to do for the reconstruction or construction of any other harbour. Therefore, it cannot be said that in this case there will be continuing injury by the reproduction of the plan.

I have no doubt, on the materials placed before me, that the plaintiffs have established prima facie copyright in the work and infringement thereof. I have given my anxious consideration to the question of granting a temporary injunction, especially as it is laid down by authority of the English cases that injunction is the normal remedy, and it appears to me, in the peculiar circumstances of this case and the nature and the scope of the work, namely, the plan, that the plaintiffs could be amply compensated by damages. Further, the granting of any injunction in the present case will seriously interfere with the defendants' work of extending the harbour, which appears to have become necessary in the interests of the public and which project is stated to have been pending for a long time. The balance of convenience is against restraining the defendants from proceeding with the construction conceived in the interests of the public and which is stated to be urgently necessary for furtherance of trade and commerce.

The learned Judge gave directions regarding speedy filing of the written-statement and the framing of issues and the filing of documents.

15. The defendants, therefore, filed their written-statement on 24th June, 1955, vigorously opposing the suit and stating that the plaintiffs had no copyright in Exhibit P-26 (b) to be infringed, any more than the defendants had a copyright in Exhibits D-1 and P-27 and other plans pf theirs to be infringed, and that even if they had any such copyright, Exhibit P-27 was not an infringement of Exhibit P-26 (6). They contended that an alleged copyright in a literary work in two dimensions like Exhibit P-26 (b) could not be infringed by constructing a structure in three dimensions, and that the Port Trust would not be infringing any copyright of the plaintiffs either by having the blue-print Exhibit P-27, taken for the use of the contractor whose tender had been accepted, or by constructing the extension of the harbour in accordance with the lay-out indicated in Exhibit P-27, and that the plaintiffs were not entitled to an injunction or damages, and that the damages claimed, even if any damages were due, were fantastic.

16. The following issues were framed:

(1) Have the plaintiffs copyright in the plan Exhibit P-26 (b) as an original literary work?

(2) Is the blue-print Exhibit P-27 a colourable imitation of the plan or drawing Exhibit P-26 (20?

(3) Would defendants infringe the copyright of the plaintiffs,

by constructing their harbour in accordance with the lay-out indicated in the plan Exhibit P-27?

(b) by having the blue-print Exhibit P-27 for the use of the contractors, and

(4)Whether the plaintiffs are entitled to an injunction and or damages, and, if so, in what amount?

17. Rajagopala Ayyangar, J., heard and decided the suit. After discussing the entire evidence, he found, on issue 1, that the plaintiffs had a copyright in the plan Exhibit P-26 (b) as an original literary work, within the meaning of Section 35(1) of the Copyright Act, as 'literary work' there includes maps, charts, plans, tables and compilations, and Exhibit P-26 (b) must be held to be an original plan, as 'original' in that section does not mean that there should be any element of novelty but only that the work must not have been copied from any work, and that it should originate from the author, as per the ruling of Patterson, J., in University of London Press, Limited v. University Tutorial Press Limited (1916) 2 Ch. 601, the principle of the law of copyright being merely that one man should not be entitled to appropriate another man's labour, skill or expenditure. He observed that the plan Exhibit P-26 (b) drawn up by the plaintiffs in this case, was the result of expert engineering skill brought to bear upon the problem by the plaintiffs and their London consultants, and that they had incurred much expense in studying the subject and in acquainting themselves with the needs of this harbour and in devising means by which the best results could be attained at the lowest cost to the defendants, and so, Exhibit P-26 (b) should be viewed not merely as a few meaningless lines drawn on paper but as the embodiment and expression of the highly technical experience, learning and skill of the plaintiffs and their technical consultants, entailing much labour and cost in producing. Though he felt it somewhat strange that the plaintiffs should claim copyright in Exhibit P-26 [b) as an original literary work, as it would, according to him, more aptly fall within the definition of an 'artistic work', and as there was no case to his knowledge where copyright had been claimed for a plan like this, separately published, still he felt compelled to hold that Exhibit P-26 (b) would be an original literary work in view of the definition in Section 35(1) and especially as Mr. O.T.G. Nambiar, for the plaintiffs had unequivocally told him that the plaintiffs were only claiming copyright in Exhibit P-26 (b) on the fact of its being a 'literary work' under Section 35(1) and not because of its being an 'artistic work or drawing' under the same section. He added that he did not understand the learned Advocate-General, who appeared for the defendants, as contesting the position that Exhibit P-26 (b) was not a literary work as defined in Section 35(1). The learned Advocate-General has represented before us, in this appeal, that this observation is not quite correct, and that the learned Judge has not completely discussed his arguments. He pointed out to us that he had deliberately stated, in paragraph 13 of the written statement:

The plaintiffs' lay-out, Exhibit A (the present Exhibit P-26 (6) can have no more copyright than any of defendants' lay-outs, and the defendants state that none of these lay-out plans can be the subject-matter of copyright.

though the passage relied on by him does not cover wholly the point discussed by Rajagopala Ayyangar, J. On issue 2, Rajagopala Ayyangar, J., held that the defendants had not infringed the copyright of the plaintiffs in Exhibit P-26 (b) by producing their blue-print Exhibit P-27. On issue 3(a) he held that the defendants could never infringe a literary work in two dimensions like Exhibit P-26(b) by constructing a harbour extension in three dimensions. On issue 3(b) he held that the defendants had not infringed any copyright of the plaintiffs in Exhibit P-26 (b) by having the blue-print Exhibit P-27, taken for the use of the contracts, for constructing their harbour in accordance with the lay-out indicated in the plan Exhibit P-27. He was of opinion that Exhibit P-27 was not a copy or colourable imitation of Exhibit P-26 (b), but substantially only a revision to the defendants' own plans like Exhibit D-1 prepared far earlier than Exhibit P-26 (b) though the revision might be due to being struck by one feature (regarding the situation of the coal berth and the ore berth) in those old plans being repeated in Exhibit P-26 (b), realising, therefore, the convenience and the soundness of that feature, and perhaps also taking two ideas from Exhibit P-26 (b), viz., of building the ore berth on the sand-filled portion of the ground, instead of on the pier, and using mobile coal-hoppers, instead of fixed coal-hoppers thus making it possible to reduce the width of the spur and reduce the cost. He held, on issue 4, that, as. Exhibit P-27 was not a copy or colourable imitation of Exhibit P-27 (b), the plaintiffs would not be entitled either to the injunction asked for by them, or to damages. He added that if he had reached the conclusion that the blue-print Exhibit P-27 was a copy or colourable imitation of Exhibit P-26(b), he would have upheld the plaintiffs' claim regarding that portion, and would have had then to consider the relief to be granted, and this would then have to be done in the light of the circumstance that the blue-print was incidental to and in furtherance of a construction which the defendants had a right to erect, but that he was relieved of that task by reason of his finding that the blue-print plan in Exhibit P-27 was not a copy or a colourable imitation of Exhibit P-26 (b). Regarding the damages, he held that the plaintiffs' claim was in any event excessive, and that if he had come to the conclusion that the plan Exhibit P-26 (b), as a 'literary work' had been infringed by Exhibit P-27, he would have assessed the damages, at the most, at Rs. 5,000, as the travelling expenses, etc., referred to by Mr. O.T.G. Nambiar, for the plaintiffs, making the plaintiffs claim Rs. 2,50,000, or 2 1/2 per cent, of the one crore estimated as the cost of construction, were incurred for the purpose of putting in a tender and getting this big contract, and not merely for the purpose of preparing Exhibit P-26 (b). He quoted with approval the observation of Uthwatt, J., in Meikle v. Maufe (1941) 3 All E.R. 144 'copyright is not the sickle which reaps an architect's profits', and added that in this case the damages were claimed as for breach of a non-existent contract. He observed that his finding on the quantum of damages was merely of academic interest, as he was not going to award any damages, since there was no infringement of copyright at all in this case.

18. In the end, therefore, he dismissed the plaintiffs' suit with costs.

19. We have perused the entire records, and heard Mr. O.T.G. Nambiar, the learned Advocate for the appellants, and the learned Advocate-General, for the respondents, the Madras Port Trust. Though the learned Advocate-General was taken by Rajagopala Ayyangar, J., not to have seriously disputed the position that a plan like Exhibit P-26 (b) would be 'an original literary work' within the meaning of Section 1 read with Section 35 (1) of the First Schedule, of the Indian Copyright Act, the learned Advocate-General stated before us that he was contesting that point seriously and especially the alleged copyright in an isolated plan' like Exhibit P-26 (b) for an architectural or structural work, like this harbour extensions, to be executed on another's land, and merely a modification of the original plan, Exhibit P-26 (a), supplied by the Port Trust itself, the main modifications being found in Exhibit D-1 and other plans of the defendants, prepared earlier. He pointed out how even Rajagopala Ayyangar, J., had observed that the result of holding a plan like Exhibit P-26 (b) to be 'literary work' would be somewhat odd, that he felt himself compelled, by the definition in Section 35(1) of Schedule 1, to hold that the plaintiffs were entitled to copyright in the plan as an original literary work, and that Mr. O.T.G. Nambiar had purposely not stressed any copyright in the plan as an artistic work or drawing for erecting an architectural work of art; obviously because, under Section 35(1) of Schedule 1, the protection afforded by the Copyright Act to artistic works and architectural works of art would be confined to the artistic character and design, and would not extend to processes or methods of the construction.

20. After hearing elaborate arguments on both sides, we are clearly of opinion that Rajagopala Ayyangar, J., in the suit, and Krishnaswami Nayudu, J., in Application No. 1882 of 1955, were right in holding that the plan Exhibit P. 26 (b) would be 'an original literary work' entitled to copyright under Section 35 (1) of Schedule 1, read with Section 1 of that schedule, of the Indian Copyright Act. Firstly, Section 35 (1) of Schedule 1 expressly says 'literary work includes maps, charts, plans, tables and compilations.' The fact that some plans may come under the head 'artistic work' if the drawing has got an artistic character and design, will not prevent plans coming under the definition of 'literary work' and getting the larger protection afforded by the Copyright Act. 'Architectural work of art' has been defined in Section 35(1) of Schedule I as 'any building or structure having an artistic character or design', and, obviously, will not include mere plans for the architectural work, which will be, however, covered by the copyright afforded to original literary works under Section 35(1).

21. There are many cases which have held that plans and maps will be 'original literary works' under Section 35(1) despite its looking a bit odd that maps and plans should be 'literary works', especially in singles. In Faden v. Stockdale (1797) 13 Dig. No. 66, it was held that maps complied from the best authorities, after incurring considerable expenses, were subject to copyright; in Mathewson v. Stockdale (1806) 12 Ves. Jun. 270 : 33 E.R. 103, the Lord Chancellor, Lord Erskine, has held that there can be copyright in a map of the island of St. Domingo prepared with considerable expense, or in a chart of the English Channel showing the various depths, or in an East India Calendar or Directory as there was some small element of originality and great industry. He observed:

I admit that no one can monopolise such subjects as the English Channel, the island of St. Domingo, or the events of the world and every man may take what is useful from the original work; improve, add, and give to the public the whole comprising the original work with the additions and improvements, and in such a case there is no invasion of any right...The roads were there; the distances are the same; all these things must be the same. Error cannot be introduced for the sake of originality. The charts representing 25 fathoms water where there was dry land would have wrecked the mariner...If a man from his situation having access to the repositories in the India House has, by considerable expense and labour, procured with correctness all the names and appointments on the Indian establishment, he has a copyright in that individual work, though he has none in the general subject.

In Wilkins v. Aikin 34 E.R. 163, it was held that there can be a copyright in an individual work called. 'The Antiquities of Magna Groeqia' containing several prints and drawings, because of the great expense, industry and skill spent. In Standard v. Lee 6 Chancery Appeals, 346, copyright was held to exist in a plan showing a bird's-eye-view of France and, Germany during the Franco-German War of 1870-1871 as it was prepared with great skill and after considerable industry and expense. In Standard v. Harrison 24 Law Times Reports, 570, it was held that there was copyright in a plan of Paris and its environs, published during the Franco-German War with skill and after great industry and expense. In Chabot v. Davies (1936) 3 All E.R. 221, it was held that a blue-print plan together with an elevation of a shop-front and an estimate for the work given by the plaintiff to the defendants would be an 'original literary work' within Section 35(1) of the Copyright Act of 1911, and that the copyright in the plan was infringed by the defendants authorising its reproduction by the shop-front. In Meikle v, Maufe (1941) 3 All E.R. 144, it was held, that there was a copyright in the plan prepared by the architect for the building, an original literary work, though there might also be a copyright in the artistic design and character of the building, as an architectural work of art, when subsequently directed.

22. The cases relied on by the learned Advocate-General to the contrary, will not show that a plan like Exhibit P-26 (b) will not be a literary work under Section 35 (1). In Hollinrake v. Trusswell (1894) 3 Ch. D. 420, the Court of Appeal, no doubt, held that a card-; board pattern sleeve containing upon it scales, figures and descriptive words for adapting it to sleeves of any dimensions, was not capable of copyright as a map chart or plan, reversing the judgment of Wright, J., in Hollinrake v. Trusswell . (1893) 2 Ch. D. 327 though they held that it might be the subject-matter of a patent as an instrument or tool. Wright, J., had held that the card-board pattern sleeve, with figures and scale, would amount to a map, chart or plan, and would be a 'literary work' though it had no literary merit in the popular sense of the term, or any literary character at all, adding that to insist on literary merit or literary character would be taking too narrow a view of the phrase 'literary work' in Section 35(1). His view was overruled by the Court of Appeal. But it will be noticed that it was a card-board pattern or model of a sleeve, and in three dimensions, and was not what anyone would take to be a plan or map or chart in two dimensions. So, that ruling will not help the learned Advocate-General. The next ruling relied on was Davies v. Committi & Son 2 T.L.R. 216. It was held there that the face of a barometer, although containing a letter-press, would not be a book or literary work. There too, it is obvious that it was a thing in three dimensions and nobody would ever call such a thing a map or chart or plan in two dimensions.

23. All the leading and authoritative text-book writers on copyright law are also agreed that a map, chart or plan will be 'an original literary work' under Section 35(1), and that they can have the benefit of the extended copyright protection under Section 35 (1). In Halsbury's Laws of England (3rd edition), volume 8, page 376, it is stated:

The expression 'literary work' also includes maps, charts, plans, tables and compilations. The change of description of the works to be protected, brought about by the Copyright Act, 1911, from books to literary works, has not cut down or altered to his detriment the rights of a person claiming copyright.

In a footnote, on page 420 of the same volume, it is stated that the Crown will have the copyright in charts and ordnance maps got prepared for it.

24. Macgillivray says, at page 26, of his 'Law of Copyright':

Maps, charts and plans are expressly included in the definition of a book. If incorporated in a volume, they will be protected with the rest of the volume under its general title; if published separately, they will be protected as books by themselves. The meaning of 'maps', etc., will be literally construed; but it must be something which in itself conveys information to the person studying it. Davey, L.J., in speaking of maps, said, 'I agree...that a map is not confined to what is popularly known as a map - namely, as a geographical map; and that a chart is not confined to what is popularly called a chart - namely, a map of a portion of the seas showing the rocks, soundings, and such like information for the use of navigators... There may no doubt be an anatomical and physiological plan showing the structure and distribution of the muscles and bones of the human arm, or any other part of the human frame, which would be protected by the Copyright Act

25. We have no hesitation, therefore, in holding that Exhibit P-26 (b) will be a plan falling within the definition of a 'literary work' under section 35 (1) of Schedule 1. 'Maps' and 'plans' in Section 35 (1) need not be of existing things!, like St. Domingo, the English Channel and muscles and can includes plans like Exhibit P-26 (b) and even imaginary plans like the way to heaven, if original.

26. The learned Advocate-General then urged that, even so, Exhibit P-26 (b) would not be an original literary work, within the meaning of Section 1(1) of Schedule 1 of the Copyright Act, as there is little or no originality in Exhibit P-26 (b) which was based on Exhibit P-26 (a), the Port Trust plan annexed to the notice calling for tenders, and was only a slight modification of it, even the modification being borrowed from Exhibit D-1. Mr. O.T.G. Nambiar urged that neither original thought nor original research is essential for claiming 'a literary' work to be original under Section 1 of Schedule, 1, and that standard of originality required is a very low one, and had been complied with in the case of Exhibit P-26 (b) which was not a mere copy of Exhibit P-26 (a) but involved some little originality, however little it may be. We agree. Patterson, J., has said in University of London Press, Limited v. University Tutorial Press, Limited (1916) 2 Ch. 601 :

The word 'original' does not, in this connection, mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought in print or writing. The originality which is required relates to the expression of 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 any work - that it should originate from the author.

In that case copyright was held to exist in examination papers set by examiners-which were held to be original literary work. In Lewis v. Fullerton Bevans Reports of Cases in Chancery, Vol. 2, p. 6, it was held that there was a copyright in a topographical dictionary of England, though the amount of originality in it was very little. In Longman v. Winchester (1809) 16 Ves. Jun. 269 : 33 E.R. 987, a Court calendar, containing a microscopical amount of originality, was held to be capable of having copyright. It has been held that there is copyright in mathematical tables and compilations, and even in law reports, where the originality is next to nil, consisting merely in selecting the cases to be reported and in arranging them in a particular order. The only case where it has been held that there is no originality is in a faithful and slavish copy of a written document. As Exhibit P-26 (b) differs in three different respects, mentioned above, from Exhibit P-26 (a), and as copying from Exhibit D-1 is not proved it is clear that there is in it that modicum of originality required to make it 'an original literary work' within the definition in Section 35 (1) of Schedule 1.

27. It was next contended by the learned Advocate-General that there cannot be any copyright in a plan like Exhibit P-26 (b) regarding a structure to be erected on another's land and having no value by itself for reproduction, as nobody would be interested in buying copies of such a plan or reproducing it. We cannot agree. Copyright is, no doubt, the sole right to produce or reproduce a work which is capable of being the subject of copyright protection, or any substantial part thereof, in any material form whatsoever. But the right to reproduce is enough to sustain copyright. Actual reproduction is not necessary, much less profits by reproducing the plan. Even unpublished works have copyright. It is clear from Chabot v. Davies (1936) 3 All E.R. 221, that there can be copyright in a plan prepared for a shop-front to be erected on another's land, and that the copyright in the plan can be 'an original literary work' Meikle v. Maufe (1941) 3 All E.R. 144, shows that there is copyright in the plan submitted by the architect for erecting a building on another's land, besides copyright in the artistic design and character of the architectural work when the building is erected. So, this contention of the learned Advocate-General cannot stand.

28. Nor can his contention that the plan Exhibit P-26 (b) is of no economic value, based on the observations in Bradbury v. Hotten L.R. 8 Exch. 1, and Hanfstaengl v. Smith and Sons (1905) 1 Ch. D. 519, as nobody in the world will be interested in buying copies of Exhibit P-26 (b), standi Economic value is irrelevant when considering copyright. Some priceless things are not valued at the time, like Goldsmith's 'Vicar of Wakefield' and Fitzgerald's 'Omar Khayyam'. Besides Exhibit P-26 (b) cost thousands of rupees to make, and that may become relevant in a suit based on quantum meruit.

29. The fact that the structure or construction as per Exhibit P-26 (b) has not been actually erected and that the plaintiffs will not be able to erect it, as their tender has been rejected, will also be no reason for rejecting their claim to copyright in Exhibit P-26 (b) as an original literary work. In Stannard v. Harrison (1871) 24 L.T. 570, it has been held that copyright may exist in the designor or inventor of a plan, though he may not himself be able to execute it.

30. Now we shall consider the argument of Mr. Nambiar, for the appellants, that Rajagopala Ayyangar, J., went wrong in holding that the defendants could not infringe the copyright of the plaintiffs in Exhibit P-26 (b) as a literary work by constructing the harbour extension in accordance with the lay-out indicated in the plan, Exhibit P-27, even if Exhibit P-27 is a copy in substance of Exhibit P-26 (b), as no three-dimensional work like the structures to be erected in the harbour extension, could be an infringement of a two-dimensional plan and original literary work, like Exhibit P-26 (b), and that such structures would infringe only an artistic or architectural copyright, if any, in Exhibit P-26 (b), and that an injunction restraining the defendants from proceeding with the constructions of the harbour extension as per Exhibit P-27, even if it is a copy of Exhibit P-26 (b), could never be granted. He relied on the ruling in Chabot v. Davies (1936) 3 All E.R. 221, for this argument as also on the rulings in King Features Syndicate Inc. v. O. & M. Kleeman Ltd. L.R. 1941 H.L. 417, and Bradbury Agnew and Co v. Day 32 T.L.R. 349. We are of opinion that these rulings will not help the appellants, and that Rajagopala Ayyangar, J., is perfectly right in holding that a building in three dimensions based on a plan in two dimensions and amounting only to an original literary work will not amount to an infringement of copyright and cannot be the subject-matter of a suit for injunction. In Chabot v. Davies (1936) 3 All E.R. 221, the facts were briefly these. The plaintiff, Chabot, was a designor and fitter of shop-fronts and the like. The defendants were partners-carrying on business as purveyors to the public of cooked fish and vegetables. On August 27, 1935, the plaintiff sent to the defendants a blue-print which was a plan and an elevation for a new shop-front for a fish and chips shop intended to be constructed by the defendants. The estimate of the works came to about 400. The plaintiff heard nothing about the decision of the defendants regarding the plan and the estimate submitted by him. But, in October that year, he saw the new shop-front of the defendants based on his plan, erected by another firm. So, the plaintiff brought the suit for damages. The defendants contended that the shop-front in three dimensions could not be said to be a reproduction of the plaintiff's plan in two dimensions and so would not amount to an infringement of the plan as a original literary work. It was held that the shop-front was a reproduction of the design in the plan, as the defendants themselves admitted that the plan and elevation of the plaintiff were handed over to the firm which constructed the shop-front, and as the design in the plaintiff's plan, when compared with the photograph of the shop-front, irresistibly led to the inference that the shop-front had been constructed on the basis of the plan, and had adopted its design and character, and so there would be breach of copyright of the plaintiff in the plan, as copyright means the sole right to produce or reproduce a work or any substantial part thereof in any material form whatsoever without the permission of the owner of the plan. Though it was held that the plan was 'an original literary work' covered by the extended copyright, the decision holding that there was infringement of copyright, and liability to pay damages for it, seems to have been reached on the footing that the plan was an artistic work of drawing regarding a proposed architectural work of art, and that even the limited copyright in respect of its artistic character and design, apart from the processes and methods of construction, had been infringed, though, this matter was not specifically stated. That was also the view of Rajagopala Ayyangar, J. We agree with him that in case Chabot v. Davies (1936) 3 All E.R. 221, is to be construed as a decision that a three-dimensional structure based on a two-dimensional plan treated as a literary work would constitute an infringement of copyright in the literary work, then that view should be respectfully but emphatically dissented from.

31. The following passage in the judgment of Rajagopala Ayyangar, J., will show the untenability of the argument of Mr. Nambiar in this respect:.Let us look at the consequences which the acceptance of the argument on behalf of the plaintiffs lead us to. Let us suppose that the places at which a building should be located or erected were not contained in a plan or drawing but the author had described in words the arrangements of rooms in a building; it would mean that no one could construct a building on those lines or arrange his rooms in that manner set out in the book, and this would be a most extraordinary result which the Copyright Act would have achieved. It was in this context that I asked Mr. Nambiar as to what his submission would be to the following : I have a plot of land on which I intend to construct a residential house. Without any reference to me and unasked a person draws a plan locating the residential building in one place, the out-house and garages and servant-quarters in other places and publishes it. Could I thereafter be prevented from constructing on my property buildings in places suggested in that plan? Mr. Nambiar was also appalled at the result, and answered the question in the negative, but he added that that was so because the plan might not be 'original' but might have arranged the buildings on the basis of matters of common knowledge whereas in the present case the plaintiffs had contributed their labour, skill, technical knowledge and capital in evolving their plan, Exhibit P-26 (b). I do not agree that this sufficiently meets the point, regard being had to the connotation of 'original' in this context. Similar instances might be multiplied as regards the result of holding that there might be an infringement of literary copy-light by reproduction of structures in the places indicated in the plan. For instances, a City Council might be contemplating an expansion of the city in a particular locality. It cannot be that an architect or an engineer by drawing up alternative plans unasked, showing where roads might be conveniently laid, acquires a copyright in such a plan and can successfully prevent the corporation from constructing those roads in any of those places but must needs employ that architect or engineer to effect the construction. The interpretation contended for by learned Counsel for the plaintiffs would result in the creation of a novel type of monopoly never within the contemplation of the Copyright Act of 1911. In my opinion, a construction which would lead to such inconvenient and absurd results has necessarily to be rejected, for to adopt it would be to make copyright an instrument of oppression and extortion. As Lindley, L.J., said in Hanfastangal v. Empire Palace (1894) 2 Ch. D 1, though in a slightly different context, 'I am asked to put upon the Copyright Act a construction which was never dreamt of when it was passed and which it does not really bear'.

By treating the plans, however, as works of art, there will be no difficulty in construing the section without producing absurd results. So construed, the artistic character or design, as shown by the elevation and the plan, would be protected, and the public would be prevented from copying only such artistic work because in such an event Section 35 expressly limits copyright to the artistic character and design of the building. There is no complaint that the structures which the defendants would be constructing would in their appearance copy the artistic character or design as disclosed in the plaintiff's plan, and indeed the plaintiff's plans do not include any elevation to sustain any such claim. If these are not copied, there would be no infringement of artistic copyright.

Rajagopala Ayyangar, J, pointed out another absurd result of agreeing with the view propounded by Mr. Nambiar, viz., that under Section 7 of Schedule I, all infringing copies of an original literary work should be deemed to be the property of the owner of the copyright, and he would have a right to take proceedings for the recovery of the possession thereof, and that even Mr. Nambiar did not contend that the buildings, when erected as per the plan is Exhibit P-26 (b), would be the property of the plaintiffs, the owners of the copyright in Exhibit P-26 (b) as an original literary work and should be handed over to them. Indeed, even the fantastic claim of the plaintiffs for damages amounted only to Rs. 2,50,000, and they never dreamt of claiming the harbour extension costing one crore of rupees, when fully constructed.

32. Further, the Copyright Act provides for different extents of copyright for a plan regarded as an original literary work, and a plan regarded as an artistic drawing or an artistic design of an architectural work of Article The copyright protection afforded to a plan as original literary work is far more extensive than the copyright protection afforded to it as an artistic work and an architectural work of art where it is confined to the artistic character and design and will not extend to processes or methods of construction. We are satisfied that a plan as an original literary work should be looked at and compared with another plan (A copy is that which comes so near to the original as to suggest the original to every person seeing if. Kelsmith, J.) like that in two dimensions, just as a building should be compared with a building for infringement of the character or design or an architectural work of Article In Bradbury Agnew Co. v. Day 32 T.L.R. 349, the plaintiff Messrs. Bradbury Agnew & Co., proprietors of 'Punch' claimed from the defendant, Mr. Day, a musical-hall agent and proprietor of revues, damages for infringement of their copyright in some cartoons called 'Dropping the Pilot', 'The World's Enemy', 'After Ten Years', 'Unconquerable' and 'Bravo, Belgium' and damages of 61-10-0 were awarded on the footing that the cartoons in question were works of art consisting of an idea and of a design, and that every cartoon as a work of art was entitled to protection regarding the design, even though it need have no artistic merit. It was held that the design and character had been infringed in that case by the defendants reproducing them in his tableaux vivantes. Damages were not awarded for infringement of the copyright in the cartoons as original literary works. In King Features Syndicate Inc. v. O. & M. Kleeman Ltd. . 1941 H.L. 417, the character and design of an artistic work popularly known as 'Popeye, the Sailor' the copyright in which vested in the plaintiffs, had been infringed by the defendants by making Popeye dolls, toys, and brooches, and, therefore, damages were awarded to the plaintiffs arid an order was passed directing the defendants to deliver up the infringing articles for destruction. Here too, the sketches and cartoons depicting 'Popeye, the Sailor' were treated as artistic works, and not as original literary works when considering the infringement and awarding the damages. As Rajagopala Ayyangar, J., has remarked:.If a literary work describes a piece of dress or the mode of wearing it, or a recipe for cookery, it would not be an infringement to wear the dress of that type, or cook that dish for consumption.

So, too, if a painting were made of a character in a novel. The reason is that the quality the possession of which enables the work to claim literary copyright is not found in the reproduction. In other words, what is reproduced is the idea behind the expression, and not the expression itself.

33. We may add that the same thing will apply to the painting a piece of music, like thodi or kalyani raga as in the Rajput School of painting, though it will be an infringement of literary copyright to dramatise or film a novel, to photograph a painting, paint a photograph, etc.

34. For all these reasons, we hold that Exhibit P-26 (b) as an original literary work would not be infringed by constructing the harbour extension in accordance with the lay-out indicated in the plan Exhibit P-27, even if Exhibit P-27 is held to be a copy of Exhibit P-26 (b) in its essential features. If follows that no injunction can, therefore, be granted against the defendants regarding the extension of the harbour in accordance with the lay-out indicated in the plan, Exhibit P-27, even if it is taken to be an infringement of the plaintiff's copyright in Exhibit P-26 (b) as an original literary work. Of course, there are several other weighty reasons in this case for not granting any injunction in favour of the plaintiffs, even if they had a right to get an injunction, which they really have not. Firstly the plaintiffs had represented to the defendants that the plan and lay-out in Exhibit P-26 (b) was only a slight modification of the plan in Exhibit P-26 (a), and they must be held to that representation and denied any injunction, even if otherwise entitled to it following the principle of the rulings in Harnam Singh v. Jamal Pirbhai 1951 H.L. 688 , and Lyle Leller v. A Lewis and Co (Westminster) Ltd. 1956 Weekly Law Reports 29, where the parties were held to be bound by their representations and estopped from claiming higher rights which they might have otherwise claimed. There is also the fact noted by Krishnaswami Nayudu, J., that vital public interest required the extension of the harbour and such interests must prevail over the private interests of the plaintiffs even if they are technically entitled to an order of injunction, especially as the plaintiffs could be amply compensated for by damages. Thus, an injunction will not be granted against the Government's rushing lorries to cyclone areas or closing breaches in big irrigation tanks at the instance of a man claiming prior contract. Injunction being an equitable remedy can only be granted in cases where he who seeks equity does equity. It will never be granted in cases where the hardship to the public is very great and the plaintiff can be amply compensated by damages. Of course, all this is more or less academic, as we are holding that Exhibit P-27 is not wholly, or in any important point a copy of Exhibit P-26 (b) or an infringement thereof, and that the plaintiffs would not be entitled either to injunction or to damages in the circumstances.

35. The next point for determination is whether the plaintiff's copyright in Exhibit P-26 (b) as an original literary work, has been infringed by the defendants Copying it or printing it in Exhibit P-27 as urged by Mr. Nambiar, who said that Rajagopala Ayyangar, J., went wrong in holding that the plaintiff's copyright' in Exhibit P-26 (b) was not infringed by the defendants by producing Exhibit P-27, their modified blue-print, and that, even if, there was such infringement, the damages could not exceed Rs. 5,000 at the most. After scrutinising the entire evidence, we are clearly of opinion that Rajagopala Ayyangar, J., is right in both his conclusions. Exhibit P-27, no doubt resembles Exhibit P-26 (b), and differs from Exhibit P-26 (a), in the three points relied on by the plaintiffs and mentioned already. But despite all that, Exhibit P-27 will not be an infringement of Exhibit P-26 (b). As Rajagopala Ayyangar, J., has stated in his judgment, and as is clear from the evidence of D.W. 1, the Chief Engineer of the Port Trust, several plans were prepared by the Port Trust far earlier than Exhibit P-26 (a), including Exhibit D-1 prepared on 28th July, 1952, as is already proved by the evidence of D.W. 1 and the Register of Plans referred to by him, and Exhibit D-1 was actually hanging in the discussion room when P.W. 1 and Mr. Ostrowski went and discussed with D.W. 1 about the harbour extension in January, 1954, long before Exhibit P-26 (b) came into existence. Though P.W. 1 said that he did not notice that plan, it is proved beyond all doubt that it was then in the discussion room. D.W. 1 swore that P.W. 1 must have seen that plan in the discussion room in January, 1954. Whatever that: be, one great point of originality in Exhibit P-26 (b), claimed by P.W. 1 and the plaintiffs, was that the positions of the coal berth and the ore berth were altered in Exhibit P-26 (b) from their positions in Exhibit 26 (a) with the consequent advantages of carrying ore to the harbour and taking away coal from the harbour at the same time. The positions of the coal berth and the ore berth in Exhibit P-2 (b) were much the same as their positions in Exhibit D-1 (plan G.E. 7155) prepared by the Port Trust. Even P.W. 1 had to admit that the ore berth had a similar position in Exhibit D-1 as in Exhibit P-26 (b). No doubt, their positions had been altered for the worse in Exhibit P-26 (a), the later plan of the Port Trust and the plan circulated to the contractors along with the tender notice, and it is quite possible that the plaintiffs arrived at the positions of the coal and ore berths shown in Exhibit P-26 (b) independently and without seeing Exhibit D-1 and copying the positions therefrom. All the same, it is clear that the Port Trust authorities had those positions put in the earlier plans by their own independent thinking, unaided by the plaintiffs. Even if they reverted to the original positions on seeing the positions in Exhibit P-26 (b) and on realising that the original positions were better, they would not be infringing the copyright of the plaintiffs in Exhibit P-26 (b) by doing so, as they were only going back to their own original positions and not stealing anything from Exhibit P-26 (b), the product of the plaintiff's brains, industry and money. There is also the fact that the plaintiffs were only allowed to make a slight modification of the plan and lay-out in Exhibit P-26 (a) under condition No 11 to the annexure, and that the plaintiffs themselves claimed only to have made such a slight modification in all communications of theirs till they knew or heard that their tender was rejected and another's accepted, when alone they came forth With the contention that there was in the plan and lay-out in Exhibit P-26 (b) a great and vital modification of the plan and lay-out in Exhibit P-26 (a). No doubt, Mr. Nambiar may be right in saying that an expression like 'slight, modification' should be construed in the context, and not interpreted literally. A big financier may, for instance tell another big financier, I want a little money, meaning a million pounds, though the expression 'a little money', if construed literally, cannot bear that meaning. But, here, we are not merely interpreting a phrase or expression. The plaintiffs wanted to submit an alternative plan to that in Exhibit P-26 (a). The Chief Engineer of the Madras Port Trust emphatically told P.W. 1 and Mr. Ostrowski that the Port Trust authorities and the Chairman would not permit anything but a little modification, and the plaintiffs accepted this condition, which was embodied in the revised condition No. 11 and they stated specifically, when submitting their tender and plan, Exhibit P-26 (b), that in the plan Exhibit P-26 (b) they had made only a slight modification, and went on repeating this in subsequent correspondence till they became convinced that, they would not get the contract. This will show that the so-called big and vital alterations of the plan and lay-out in Exhibit P-26 (a) claimed for Exhibit P-26 (b) will boil down only to a slight modification of the original plan and lay-out. Of course, even a slight modification in a one-crore plan may be appreciable enough.

36. The reduction of the width from 66 feet in Exhibit P-26 (a) to 54 feet in Exhibit P-26 (b), claimed as another great improvement of Exhibit P-26 (a), in Exhibit P-26 (b) and Exhibit P-2 7, by the plaintiffs, will not amount to anything grand or original as length and breadth are nothing much to go by, and as in one of the previous plans prepared by the defendants in April, 1953 long before Exhibit P-26 (b), the width was 60 feet which is just between 66 feet in Exhibit P-26 (a) and 54 feet in Exhibit P-26 (b) as remarked by Rajagopala Ayyangar, J. The width was also reduced in Exhibit P-26 (b) because of the suggestion of the plaintiffs to Use mobile coal-hoppers, instead of fixed coal-hoppers. That was an original idea, perhaps suggested by the plaintiffs to the defendants from their experience of harbours in Turkey. That idea is, of course, not in Exhibit P-26 (b) or covered by the proposed contract. It is also well settled that there can be no copyright in an idea : See Pike v. Nicholas L.R. (1869) 5 Ch. A. 251. Many a man suggests a good idea to his neighbour when he is constructing a building; but that will not make him get copyright either in the idea, or in the part of the building based on that idea.

37. The contention of the plaintiffs that Exhibit P-27 is practically a copy of Exhibit P-26 (b), with the difference that it is drawn on twice the scale and has omitted the neck of the jetty, cannot stand a moment's scrutiny in the light of the observations above. That was the very reason why P.W. 1 and Mr. Ostrowski had not told D.W. 1, the Chief Engineer of the Madras Port Trust, when they saw Exhibit P-27 for the first time, that it was a copy of their own plan, Exhibit P-26 (b), and that it was illegal and unethical to use it, if any other contractor's tender was accepted. This curious allegation was made only many days later, viz., on 18th February, 1955, when the plaintiffs were chagrined at not getting this big contract on which they had set their heart.

38. Even if there was an infringement of the plaintiff's copyright in Exhibit P-26 (b) by the defendant's blue-print, Exhibit P-27, we entirely agree with Rajagopala Ayyangar, J., that the utmost damages that could be given for such infringement would be Rs. 5,000. The fabulous amount of Rs. 2,50,000 claimed by P.W. 1, working at 21 per cent, on the crore covered by the work for the harbour extension, cannot at all be justified on any known basis. There was no contract entered into with the plaintiffs by the defendants regarding the construction of this work costing one crore, and damages for infringement of the plan cannot be assessed on damages for breach of a non-existing contract. It will be remembered that even P.W. 1 admitted that when he asked D.W. 1 whether the plaintiffs were getting the contract, he was expressly informed that the question of giving the contract to any of the tenderers would be considered and decided on its merits after the examination of all the tenders by the Port Trust Committee and the Chairman. Nor can the travel expenses of Mr. Ostrowski and P.W. 1 be included in the cost of preparing the plan, Exhibit P-26 (b). The plan was prepared not as a plan to be paid for by the Port Trust but as an incidental necessity for submitting the plaintiff's tender for this giant contract. It is in the hope of getting this giant contract, and making big profits, that P.W. 1 went to England and consulted the Braithwaite Co., London and its Chief Engineer and Senior Assistants, and went to Rome to consult Mr. Ostrowski. It is with that very object that Mr. Ostrowski and P.W. 1 came to Madras and interviewed D.W. 1 and went to Cochin and saw that harbour. Such journeys and expenses are all in the game when people try for giant contracts, and all the tenderers must have to some extent or other, spent large sums likewise. P.W. 1's statement that Rs. 50,000 or 60,000 were spent in travel expenses and preparation of the plan Exhibit P-26 (b) leaving alone the consultation fees to be paid to Braithwaite Co., London, and to Mr. Ostrowski, and the salary of P.W. 1 and his assistants, will not carry the matter further, as all these expenses, even if incurred, were incurred in the hope of getting a giant contract, and cannot represent the damages payable for infringement of the copyright in Exhibit P-26 (b) as a literary work. For that infringement, even if infringement is established, a sum of Rs. 5,000 would be the utmost that could be given as damages as remarked by Rajagopala Ayyangar, J. Damages for such infringement differ from case to case. In Hanfastaengal. v. Smith and Son (1905) 1 Ch. D. 513, a farthing damages were awarded. In Chabot v. Davis (1936) 3 All E.R. 221, damages of hundred guineas were given. In Bradbury Agnew and Co. v. Day 32 T.L.R. 349, the damages of 61-10-0 were given. In Meikle v. Maufe (1941) 3 All E.R. 144 damages 150 were given. All these cases were decided in England where the cost of preparing plans, maps, etc., will be much higher than in India, because of the cost of living and the richness of the people being higher. In India, Rs. 5,000 will be the very utmost which can be thought of as damages even if there was an infringement of the plaintiff's copyright in Exhibit P-26 (b), as a literary work, by Exhibit P-27. Of course, it is only academic, as we are not going to award a pie damages, since there was no infringement of copyright at all in this case.

39. Mr. Nambiar asked whether all the expenditure of thousands of rupees in preparing a plan like Exhibit P-26 (b) should go to waste. It Often goes to waste when the big contract hoped for is not got. Many a poor candidate goes for an interview to a distant place like Delhi at his own expense in the hope of getting a. job which has been advertised. When he does not get the job, he loses the travel expenses, and that will be a greater loss to him proportionately than the loss of the money spent on Exhibit P-26 (b) to a big company like the plaintiffs. Sometimes, plans are called for with a promise of payment commensurate with the merit of the plan, quite irrespective of whether the contract for the work is or is not given to the persons submitting the plan. Thus, the Ghola King Raja Raja gave various prizes to the persons who submitted plans for constructing the Brihadeeswara Tern, pie at Tanjore, and for fixing the 80-ton cupola at the top of the 180-feet tower; the Kalinga King gave various prizes to persons who submitted plans and designs for erecting the famous black pagoda of the sun at Konarak, jutting a furlong in to the sea, and for fixing the heavy cupola on the top; and Emperor Shah Jahan gave big prices for those, including an Italian, who submitted plans and designs for building the Taj. The learned Advocate-General informs us that the Government of India have given prizes up to Rs. 20,000 for plans and designs for the new major port of Kandla, according to the merit of each plan. There was, unfortunately, no offer of such a prize for any plan for this harbour extension by the Madras Port Trust in calling for plans and tenders. Possibly, the extension did not require great skill and daring like the Tanjore temple, the Konarak temple, the Taj and the Kandla Port.

40. Mr. Nambiar then urged that, in cases of infringement, there might be a claim for money compensation based on quantum meruit. The learned Advocate-General does not deny that there can be such a claim in suitable cases, as when a man calls for a plan, from an architect for constructing a building and the architect submits a plan, and the man thereafter constructs the building using that plan, but without paying the architect anything for it or giving him the contract, though he knows-full well, or ought to know, that the architect was not intending to draw the plan, and give it to him without expectation of payment. He stated that the damages-awarded in Chabot v. Davies (1936) 2 All E.R. 221, might have been based on the quantum meruit principle also, but urged that in the present case the defendants never invited the plaintiffs specifically to submit a plan to them, but only issued a general notice calling for tenders and plans, and never utilised the plaintiffs plan Exhibit P-26 (b) for constructing the extension, but only utilised their own plans in Exhibits D-1, P-26 (a) and P-27, borrowing merely two ideas from the plaintiffs, viz., the construction of the ore-berth on the sand-filled foreshore instead of the pier over the water, and the idea of mobile coal-hoppers, and ideas cannot form the subject-matter of copyright even in iliterary work. He also pointed out that the plaintiffs had not made any claim for money compensation on the quantum meruit basis in this suit, and that they may be left free, if they so choose, to claim money compensation on the quantum meruit basis in future proceedings. Here too, the whole question has become more or less academic, as we have held that there is not the slightest infringement of the plaintiffs' copyright in Exhibit P-26 (b), as a literary work, by the defendants' blue-print, Exhibit P-27 or by the defendant's intention to construct the harbour extension as per the plan Exhibit P-27.

41. It is clear from the above observations that Rajagopala Ayyangar, J., was right in holding that the defendants did not infringe the copyright of the plaintiffs in Exhibit P-26 (b) by giving the blue-print Exhibit P-27 for the use of the contractor who had been given this big contract.

42. This appeal deserves to be and is hereby dismissed with costs.


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