E.M. Forster and Others vs A.N. Parasuram

M. Anantanarayanan, J.—In 1924 Mr. E.M. Forster, the English Novelist, published "" A Passage to India "", a work of fiction which was

also a penetrating study of the Indo-Anglican social climate ; the work since became famous, and has recently been dramatised. Certain exclusive

rights of publication in this work were assigned by Mr. Forster to Edward Arnold (Publishers), Limited, by an Indenture of Agreement, in March,

1924. In 1955-56, the University of Madras prescribed "" A Passage to India "", as a text-book for the students taking the B.A. Degree. Mr. A.N.

Parasuram (respondent) published a Guide-book for students to the novel "" A Passage to India"", in or about December, 1954. Two actions were

instituted in the Original Civil Jurisdiction of this Court, respectively by Mr. A.N. Parasuram (respondent) on the one hand, and Mr. E.M. Forster

and Messrs. Edward Arnold (Publishers), Limited on the other, both relating to the alleged infringement of the copyright in the original work by the

publication of the Guide-book. They were tried together by Ganapatia Pillai, J., and dealt with by means of a common judgment, the learned Judge

held that there was no such infringement by substantial reproduction of the original novel and that the Guidebook of Mr. Parasuram amounted to an

independent literary effort on his part"". The suits were disposed of in the light of these and other findings, and the present appeal is by Mr.

Forester and Messrs. Edward Arnold (Publishers), Limited, the plaintiffs in C.S. No. 15 of 1957, which was dismissed. The sole question that

concerns us in the appeal is the alleged infringement of copyright in the original literary work of Mr. Forster; there were ancillary questions that

arose for determination, but they do not now concern us.

There is a very extensive case-law available upon the subject, and we have also been referred to passages from the following works, namley, 8

Halsbury (Simonds Edition), page 372 et seq., Copinger (Ninth Edition), Russell-Clarke on Copyright and Industrial Designs (1951 Edition), and

Corpus Juris Secundum, Volume 18. In this context itself, it may be convenient to notice that several of the leading authorities were also reviewed

by Rajagopala Ayyangar, J., in Blackwood and Sons Ltd. and Others Vs. A.N. Parasuraman and Others, . Before proceeding to any discussion

of the principles, as could be gleaned from the case-law and standard treatises, we think, however, that it is of some importance first to set down

the relevant part of the Copyright Act III of 1914, which admittedly governs the rights of parties, though subsequently repealed by Act XIV of

1957. Section 1(2) of the Act runs as follows:

(2) For the purposes of this Act, ''copyright'' means the sole right to produce or reproduce the work or any substantial part thereof in any material

form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public ; if the work is unpublished, to

publish the work or any substantial part thereof; and shall include the sole right--

(a) to produce, reproduce, perform, or publish any translation of the work ;

(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work ;

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public

or otherwise ;

(d) in the case of a literary, dramatic or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of

which the work may be mechanically performed or delivered ;

and to authorise any such acts as aforesaid.

(3) For the purpose of this Act, publication in relation to any work, means the issue of copies of the work to the public, and does not include the

performance in public of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work, or the

construction of an architectural work of art....

(1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything

the sole right to do which is by this Act conferred on the owner of the copyright ; provided that the following acts shall not constitute an

infringement of copyright:

(i) Any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary.

We have set forth this part of the statute verbatim above, for an important reason. It will at once be obvious that where a person has copyright

in a literary work, and any other person produces or reproduces the work, or any substantial part thereof, in any material form, he is committing an

infringement of copyright. That is the intrinsic or essential test, and, if that test is not fulfilled, the cause of action does not lie. But there may be

some other contingency, such as the conversion of a drama, which is an original literary work, into a novel or non-dramatic work, similarly, the

original literary work might be a novel, and it might be converted into a drama which could be performed in public, in those instances, other tests

might also be applicable. If the infringement is prima facie established, the party sued can rely upon any of the exceptions enacted in Section 2(1)

of the Act, which will include "" fair-dealing "" as specified in Section 2(1)(i). In this context, it may also be of some significance to note the

interpretative definitions in Section 35(1) of Act III of 1914. "" Infringing ""is interpreted as"" any copy, including any colourable imitation, made or

imported in contravention of the provisions of this Act"". The rationale of this statute was thus expressed by Lord Atkinson in Macmillan &

Company Ltd. v. K. and J. Cooper (1923) 46 M.L.J. 637 : ILR 48 Bom. 292

Copyright is therefore a statutory right... the moral basis on which the principle of these protective provisions rests is the eighth commandment,

''Thou shall not steal.'' It is for this reason that Lord Halsbury begins his judgment in Walter v. Lane L.R. (1900) A.C. 539, 545 with the following

words : '' I should very much regert it if I were compelled to come to a conclusion that the state of the law permitted one man to make a profit and

to appropriate to himself what has been produced by the labour, skill and capital of another.... It will be observed that it is product of the labour,

skill and capital of one which must not be appropriated by another, not the elements, the raw material, if one may use the expression, upon which

the labour and skill and capital of the first have been expended.

In this very context, it is equally important to note that the countervailing consideration must be that, as copyright is a restraint upon human activity

and enterprise, the provisions must be generously construed. Under the guise of copyright, the plaintiffs cannot ask the Court to lose all the avenues

of research, scholarship and the frontiers of human knowledge, Kartar Singh v. Ladha Singh AIR 1934 Lah. 777.

The refinements of the law may be set forth in the form of certain propositions. We shall then refer to certain leading decisions upon the subject,

and analyse the incidence of the established principles upon the facts of the present case. There is wide authority for the proposition that, as far as

the original literary work is concerned, ideas, and opinions are not the subject-matter of copyright, but only the form, or the expression of such

ideas or opinions. The principle has been expressed in Gopinger, with lucidity, in the following passage:

What is protected is not original thought or information but the original expression of thought or information in some concrete form. Consequently,

it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant

must, to be liable, have made a substantial use of this form ; he is not liable if he has taken from the Work the essential idea, however original, and

expressed the idea in his own form or used the idea for his own purposes.

There is no copyright in the plot or theme, per se ; Copinger pages 62 and 174 : also see Corelli v. Gray 30 T.L.R. 116. The other relevant

citations, on this aspect, are Donoghue v. Allied Newspapers, Ltd. L.R. (1938) Ch. 106 ; Gopal Das Vs. Jagannath Prasad and Another and Joy

Music, Ltd. v. Sunday Pictorial, Ltd. (1960) 1 All E.R. 703 . Originality, which is required, does not relate to ideas, but to the expression of the

thought, University of London Press Ltd. v. University Tutorial Press Ltd. L.R. (1916) 2 Ch. 601 . But certain distinctions do arise, with regard to

this general doctrine, when we have to consider the special instances of infringement of copyright in a novel by dramatization, or by the conversion

of a dramatic work into a novel or other non-dramatic form (Section 1(2)(b) and (c) of the Act). In such cases, piracy may arise by copy of the

situations themselves, even apart from the verbal expression (pages 170, 173 and 174 of Copinger). The point to note here is that, in the matter

before us, we are not concerned with any alleged conversion of the novel of Mr. Forster into a dramatic form, but with the publication of Guide-

book to the study of the novel, which had been prescribed as a text-book for students taking the B.A. Degree in the Madras University.

Copyright is thus a statutory claim, and the complaint must be established within the strict provisions of the Act. Questions have come up before

Courts whether an abridgment of an original work would constitute an infringement of copyright equally, whether such abridged work could upon

its own status, claim the protection of copyright. Questions have arisen whether there could be copyright in a title to a work; and whether there

could be copyright in a particular arrangement of a pre-existing non-copyright material, or the publication verbatim of speeches delivered by

another. Macmillan v. Suresh Chunder Eb ILR 17 Cal. 951 is of particular interest, since the point involved was whether the selection and

arrangement of non-copyright poems in such a work as Palgraw''s ""Golden Treasury"" could claim protection. The principle was enunciated that

protection could be claimed, for, as Lord Eldon laid down in Longman v. Winchester 16 Vesey 269 "" in... a work consisting of a selection from

various authors, two men might perhaps make the same selection; but that must be by resorting to the original authors, not by taking advantage of

the selection already made by another"". Walter v. Lane L.R. (1900) A.C. 539 is also of interest, because it related to the publication of verbatim

transcripts of the speeches of another ; it was held that such a person was an '' author'' of the report within the meaning of the Copyright Act, and

entitled to protection. It has been clearly laid down that there is no copyright in a ''title '' as such, since this is not substantial enough to merit the

claim to protection. It may be capable of protection only in a '' passing off action; see Dicks v. Yates L.R. (1881) 18 Ch. D. 76 (C.A.) and other

authorities listed in Halsbury (Simonds Edn.), Volume 8, page 377, under paragraph 691. What is of more relevance to the present matter is that

an abridgment is not an infringement of copyright, and, in itself, could be a source of copyright. Thus, there could be copyright in Notes, even

though the matter contained therein might be found in standard works; see Halsbury, page 375, paragraph 688; Copinger, pages 153 and 154,

Russell-Clarks, page 23 Macmillan & Company, Limited v. K. and J. Copper 46 M.L.J. 637 : ILR 48 Bom. 292 . See also Cyles v. Wilcox 2

Atk. 141.

With the propositions relating to "" Fair Dealing "" we need not concern ourselves immediately, for that will arise only if it could be otherwise

established for the appellants that there has been an infringement by substantial reproduction in the present case. If that is not made out, there is a

failure at the threshold of the claim, and the question does not really arise whether Mr. Parasuram (respondent) could claim that he is protected by

any of the objectives of ""Fair Dealing"". With regard to the test for determining whether infringement exists-, the authorities are clear that it is not

merely quantitative; it could well be qualitative. Where the vital part of a work has been reproduced, though such part might constitute only some

fraction of the entire text, the infringement has been made out. In this respect, the two works must be taken and considered as a whole. The

relevant authorities on this point will be found set forth in 8 Halsbury, page 427, para. 777.

We are now in a position to consider the arguments upon which the alleged infringement is pressed, in the context of the present facts and the

two works before Court.

The learned Judge has furnished a summary of the plot and an outline of the novel, "" A Passage to India "" in his judgment. We shall not refer to

that aspect further here, both for the sake of brevity, and as the novel has been widely read. In commenting upon the arguments, we shall assume

some acquaintance with the theme and structure of the novel. Of more direct significance is the character of Mr. Parasuram''s publication. It is

styled "" E.M. Forster, A Passage to India, (Everyman''s Guide) "". Sri Gopalaswami Ayyangar for the appellants contends that this, in itself, is

misleading and an invasion of the rights of his clients; unwary customers at book-shops might purchase this cheaper-priced book, under the

delusion that thereby they were acquiring the original work itself, in a cheap edition. We do not think that this argument has any substance. As we

have earlier affirmed, there is no copyright in the title and purchasers, whether of the original work or of the guide, are most unlikely to be illiterate,

or unacquainted with English. It will be perfectly clear to them, from the words enclosed in brackets as a sub-title, that they were acquiring, not the

original work, but a ""guide for University students"". The introduction consists of fifteen printed pages, and includes studies of the life and works of

Forster, of Forster as a Novelist, of the story in outline, and of the plot, as analysed by the respondent. This is followed by the section headed

Textual-Essays"", from pages 16 to 57. These appear to us to be very skilfully arranged, in such manner that they contrive to present an abridgment

of the novel itself, though the sequence is according to the incidents, and not as a chronological narrative. This part is followed by "" Character

Sketches "" and ""Character Contrasts"" (pages 61 to 88); they comprise all the main characters in the novel. Finally there are "" General Essays

upon such subjects as Forster''s conceptions and philosophy of life, the racial issue involved in the novel, the element of religious symbolism in it,

and the significance of the '' Title''. This description of Mr. Parasuram''s book will suffice to show that it is really some kind of commentary upon

the original work, designed to enable University students to give effective answers to questions that may be set in the University Examinations,

upon their study of the novel. Actually the respondent''s work is neither an abridgment, nor a piece of literary criticism in itself. It is functional in

character, and everything in it has been subordinated to the main function.

There was some discussion before us of the degree to which the language of Mr. Forster had been copied by the respondent in his work, in the

light of the established principle that the verbal expression is protected, and is the subject of copyright. The learned Judge has also discussed this

aspect, particularly bearing in mind the qualitative test that we have earlier referred to; if the vital part of the original work is abstracted, even it may

be a fragment, that would be piracy. But, upon this argument, the appellants can proceed very little further, and learned Counsel has been

compelled to concede this. Several phrases have been quoted from the original work, and there are a very few entire quotations. Upon the

ipsissima verba thus reproduced, a statistical analysis has been made, including words in quotations, and the entire percentage works out to Order

616 (six out of thousand). It may not be profitable to reproduce the particulars here. We do not think that it can be pretended, for a moment, that

Mr. Parasuram''s style has any affinity with that of Mr. Forster. It is true that the learned Counsel for the appellants drew our attention to several

passages in the Guide-book, which had reproduced passages from the original work, with very slight modifications, such as a combination of

clauses or a change from the direct voice into indirect voice. But these are very isolated fragments, in a work, the texture of which is wholly distinct

from that of the original novel. We do not think that this could be better illustrated than by a verbatim quotation from the Guide upon the romance

between Adela Quested and Ronny Heaslop:

As a lover Ronny comes out a somewhat better man. Even here he never seems to have touched the heights; indeed his love knows no heights. It

is just a commonplace, plain affair, with animal thrills and mechanical embraces leading eventually to the altar. If Adela''s love for Ronny is riddled

with doubts, Ronny''s love for Adela is a little weak. He seems inhibited and unable to let himself go, Adela''s crisis merely whips him into a last

blaze, but the end is near and when Adela goes over to the-other camp, Ronny, like a spent swimmer, seizes the temporarily abandoned life-belt of

safe bachelorhood firmly...

It may certainly be a matter for grievance to a creative writer, like Mr. Forster, that the people in his novel and what happens to them are not

accepted in the simple communion of understanding in which people and events in real life are accepted by us ; that may very well be what he

desires from his readers, and not this dissection, with its heavy analysis and accumulated metaphor. But, equally, we have to be fair to Mr.

Parasuram (respondent). His objective was not to express, his appreciation of the novel, or his enjoyment of it, or even to make a contribution

towards literary criticism. He was concerned to aid students taking the B.A. Degree, in answering the several questions that would no doubt be set

for them, upon the novel, in the examination papers for that Degree. He might well have been guided by considerable experience, in framing his

studies in the manner that he has done, and even in the language he has employed. If the entire result is unfortunate, from the point of view of Mr.

Forster or his Publishers, the misfortune springs from a fact unrelated to the present legal proceedings, the fact that students, taking the B.A.

Degree were compelled to study the novel, and constrained to answer questions upon its plot, theme, personalities and incidents. It is abundantly

clear that, either upon the principle of substantial reproduction, or even qualitative-reproduction, as far as the verbal expression of the original work

goes, there has been no infringement. It is wellknown that, in literary reviews, a very small proportion of verbatim quotations from an original work

is always permitted, in the interests of fair criticism. Even taking the Guide-book of the respondent in. its entirety, it can by no means be said that

such a proportion has been exceeded.

Mr. Gopalaswami Ayyangar has sought to base his main argument, not on this aspect, but upon a contention that substantial reproduction has

occurred, or at least that the Guide-book is a colourable imitation of the original which amounts, to such infringement by reproduction, because the

Copyright law cannot be narrowly construed as to exclude the theme, incidents and personalities of the novel altogether from its scope. This is an

interesting argument which deserves scrutiny and we shall deal with it immediately.

In other words, assuming that there is no copyright in the plot, theme and incidents of an original literary work, and that, intrinsically, copyright

concerns, the form or verbal expression, nevertheless is there a tertium quid, a component of a creative work which is between the plot or theme

and the words clothing it which, can also claim protection under Copyright law ? Learned Counsel relies upon a passage in Corpus Juris

Secundum, Volume 18, page 217, for the view that

an infringement is not confined to literal and exact repetition or reproduction ; it includes also-the various modes in which the matter of any work

may be adopted, imitated, transferred or reproduced, with more or less colourable alterations to disguise the piracy. Paraphrasing is copying and

an infringement if carried to a sufficient extent. Complete or substantial identity between the original and the copy is not required.

We have scrutinised this argument with the care which it certainly deserves, but find that it is not tenable, in relation to the established facts of

the record. No doubt, such characters as Fielding, Aziz, Adela Quested, Ronny Heaslop or Mr. Turton are creatures wholly of Mr. Forster''s

imagination as are, equally, the events that occurred to them and their reactions, as described in the novel. Mr. Parasuram (respondent) was not

dealing with some other novel, nor did he set forth the events of the story, and give character sketches of the personalities, borrowing from any

other source; his material was bodily taken from the original literary work. But the precise point is that it is this material which cannot claim

protection, in its own right; the verbal expression of it is protected, and even the material may be protected as such, but only in the special case of

a conversion of the novel into'' dramatic form. An abridgment does not infringe copyright, and the very idea implies that the incidents and

personalities in the two works are identical. Learned Counsel contends that the title "" A Passage to India "", is itself symbolic; much, more is meant

than the mere ship''s passage which enabled Fielding to come and stay in India for some time, and what the author had in mind was the passage to

the heart of the people of the vast country, India, and the impossibility of achieving this, so long as the power relationship of the ruler and the ruled

subsisted ; see the last chapter. But we very much doubt if any creative writer first formulates an idea, in this form, in his mind, and then proceeds

to write a work of fiction round it. Certainly, the literary work does not exist, before its expression. The idea could well be taken up by others, and

treated in their own way. But even after the work has found its verbal form, it is the form which is protected, and not the theme, plot and

characters. The argument could be sustained if Mr. Parasuram (respondent) had, in effect, reproduced the original work, though deviously.

Certainly, he cannot be convicted of this, and his guide-book remains distinctly his creation even if it be regarded as an abridgment of the novel, in

part, and, in part, a running-commentary upon it. Our study of the several authorities cited before us, does not reveal any room for this perspective

of approach, as valid within the ambit of Copyright law.

No other matter arises for our determination in this appeal. The question of '' fair-dealing '' does not arise, because of the failure of the

appellants to make out a. case of infringement prima facie.

The appeal fails and is dismissed. Under the particular circumstances, we-direct that the parties will bear their own costs.