' RAHMAT HUSSAIN JAFFERI, J.---The plaintiff is running a TV Channel in the name of Geo from the year 2002. One of their programmes 'Hum Sub Umeed Say Hain' was very popular in which the defendant No,1, All Saleem was imitating Benazir Bhutto, the then Prime Minister of Pakistan.
Therefore, a relationship was created between the plaintiff and defendant No,1 which culminated in entering into an agreement dated 15-3-2004 by which the defendant No,1 was appointed as Creative Writer. It is alleged that in the month of June, 2004 the plaintiff conceived an idea of introducing, producing, making, preparing and releasing a talk show under the title `Begum Nawazish Ali and commenced working on it. The defendant No,1 was given the sole task of writing the script of the said programme. In addition to above, the defendant No,1 was also required to perform in the said programme as a host under the get up of a lady conducting interviews with different celebrities. After working for almost over a year when the stage was finally set for commercial production of the above said programme the defendant No,1 approached the plaintiff and requested for enhancement of emoluments. Accordingly, another agreement dated 12-7-2005 was executed between the parties. The defendant No,1 was required not to divulge or utilize any confidential documents or information belonging to the plaintiff to any of his customers or associated concerns which may have come to his knowledge during employment. On 2-8-2005 the plaintiff learnt through promotional campaign of defendant No,2 that the defendant No,1, in active connivance and collusion with defendants No,2 has made arrangement for the release of talk show under title `Begum Nawazish Ali', which is an exact copy of plaintiffs aforementioned work under title `Begum Nawazish Ali, copyright whereof rests and vests with the plaintiff under the law for all intents and purposes. It is alleged that the plaintiff has already substantially invested into the development of said programme and if the defendants are not restrained from committing the act of piracy by producing, making, releasing or copying the plaintiffs work under the title `Begum Nawazish Ali' the plaintiff would likely to suffer an irreparable loss and injury hence the suit.
2. Along with the suit an application under Order XXXIX, rules 1 and 2, C.P.C. Was filed against the defendants for obtaining injunction restraining the defendants from attempting to infringe the plaintiffs work under the title 'Begum Nawazish Ali' in any manner whatsoever by making, recording, p dating, releasing, airing, publishing, marketing and/or selling the same till the disposal of the suit.
The application was supported by affidavit. The notice was served upon the defendants.
3. The defendant No,2 filed counter-affidavit in which they claimed that they are operating a TV Channel in the name of "AAJ" TV. The defendant No,2 stated that the plaintiff does not have any right or copyright in the concept of Begum Nawazish Alf, which has exclusively been produced at huge expenses by the defendant No,2 with the defendant No,1 playing the host for interviewing different famous personalities. The script of the programme has been written by Dr. Umar Adil. It is e Attended that the concept of `Begum Nawazish Ali', a talk show with different famous personalities was conceived and developed by three persons namely: Dr. Umer Adil, Nadeem Baig and Ali Saleem, the defendant No,1 on or about December, 2003. The idea was that the defendant No,1 dressed up as a woman would play the character of Begum Nawazish Ali on TV as host. The script writer would be Dr. Umer Adil and Nadeem Baig would be the Producer/Director. At that time all the three persons were working freelance. In the month of November, 2004 Nadeem Baig joined the defendant No,2 as Head of Entertainment Department and thereafter presented the idea of the character Begum Nawazish Ali' to the management of the defendant No,2. The defendant No,2 commissioned the project. In the month of June, 2005 Nadeem Baig contacted the defendant No,1 as to whether he was interested to play the host of the said show as per original concept mutually developed by them. The defendant No,1 informed Nadeem Baig that he had resigned from the plaintiff's organization on 13-6-2005 and handed over the resignation letter to him duly acknowledged by the plaintiff Muhammad Ibrahim Rahman. The defendant No,1 showed his keenness to host the show. The defendant No,1 after resignation from the employment of the plaintiff entered into an agreement with the defendant No,2. The defendant No,2 at huge expenses and efforts commenced the recording of the show "Nawazish Karam" with the defendant No,1 as the host. The defendant No,2 has already recorded four shows and in the process of developing the same, the first show has been recorded with Makhdoom Amin Faheem and Reema and the second with Aitizaz Ahsan and Nirma. The programme is to be aired on 13-8-2005 as part of defendant No,2's grand entertainment package for the 14th August celebration. On 4-8-2005 the defendant No,2 received the summons of the case and was astonished to see the contents of the plaint. The defendant No,2 has denied the allegations of the plaintiff. In his support he has filed the affidavit of Nadeem Baig confirming the concept of programme of "Nawazish Karam" that it was conceived by him in conjunction with Dr. Umer Adil and Ali Saleem.
4. The defendant No,1 also filed counter-affidavit denying the allegations of the plaintiff. He took the plea that in December, 2003 after discussing with Nadeem Baig and Dr. Umer Adil they conceived an idea of 'Begum Nawazish Ali' which was to be written by Dr. Umer Adil and directed by Nadeem Baig. The defendant No,1 was working with the plaintiff where he was imitating the role of Benazir Bhutto as the said role was being played by him since 1998 as freelance. He has supported the case of defendant No,2 and further stated that after resigning from the services of defendant No,1, he joined the defendant No,2 under an agreement, but subsequently he entered into an agreement with the plaintiff on 12-7-2005 to continue the programme of "Hum Sub Umeed Say Hain", by which he was allowed to complete his contractual obligations with other persons. He has also denied that the concept or idea of 'Beguin Nawazish Ali" was that of the plaintiff.
5. I have heard the parties' Advocates. Perused the record of this case carefully.
6. The learned Advocate for the plaintiff has stressed upon the fact that idea of the programme `Begum Nawazish Ali' was conceived by the plaintiff through their employee Badar Ikram. The programme is owned by the plaintiff, therefore, the plaintiff has copyright within the meaning of section 3(1)(a) of Copyright Ordinance, 1962. Whereas learned Advocates for the defendants have argued that the concept of 'Begum Nawazish Ali' was conceived by three persons viz. Dr. Umer Adil, Nadeem Baig and All Saleem, defendant No,1 in the month of December, 2003; that Badar Ikram did not conceive the said idea and that the arguments of the learned Advocate for the plaintiff are contrary to the averments made in the plaint.
7. The questions involved in the matter revolve around the copyright rights in respect of "idea" conceived in preparing the talk show programme of `Begum Nawazish Ali'.
8. Before we enter into discussion on factual aspect of the suit it will be advantageous to examine the legal aspect of such right. In the case of Computer Associates International, Inc. v. Altai, Inc.
Reported in 982 F.2d 693 it has been held that it is a fundamental principle of copyright law that a copyright does not protect an idea, but only the expression of the idea. On the same subject Copinger, in his book on Copyright 11th Edition, pointed out that what is protected is not the original thought, but expression of thought in a concrete form. In this connection the author makes the following observations based on the case law:-- "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 ideas, however, original, and expressed the idea in his own form, or used the idea for his own purposes."
9. In the American Jurisprudence following observations are made; -- "Generally speaking, the law does not recognize property rights in abstract ideas and does not accord the author or proprietor, the protection of his ideas, which the law does accord to the proprietor of personal property."
"In cases involving motion pictures or radio or television broadcasts, it is frequently stated that an idea is not protected by a copyright or under the common 'aw, or that there is no property right in an idea, apart from the manner in which it is expressed."
"When an idea is given embodiment in a tangible form, it becomes the subject of common-law property rights which are protected by the Courts, at least when it can be said to be novel and new."
10. In the case of Donoghus v. Allied Newspapers Limited (1937) 3 All ER 503 it was pointed out that there was no copyright in an idea and in this connection Farwell, J. Observed as follows; -- 'This, at any rate, is clear, and one can start with this beyond all questions that there is no copyright in an idea, or in ideas. If the idea, however, brilliant and however, clever it may be, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not until it is (if I may put it in that way) reduced into writing, or into some tangible form, that you get any right to copyright at all, and the copyright exists in the particular form of language in which, or, in the case of a picture, in the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or look at it."
11. In the case of Shipman v. R.K.
0. Radio Pictures (1808) 100 F. 2d 533 while holding that an idea cannot be the subject of copyright great stress was laid on the impression which the audience forms after seeing the copy. In this connection, Manton, J. Observed as follows:-- "The Court concluded that it was the idea or impression conveyed to the audience which was the determining factor, and since the impressions were the same, held there was an infringement.
From this case stemmed the modern law of copyright cases, with the result that it is now held that ideas are not copyrightable but that sequence of events is; the identity of impression must be capable of sensory perception by the audience."
12. In the case of N.T. Raghunathan v. All India Reporter Ltd., Bombay AIR 1971 Bom 48 it was held that copyright law did not protect ideas but only the particular expression of ideas.
13. The Supreme Court of India in the case of R.G. Anand v. Delux Films AIR 1978 SC 1613, after considering the case-law on the subject including the above cases, observed as under:- 'Thus, on a careful consideration and elucidation of the various authorities and the case-law on the subject discussed above, the following propositions emerge:--
(1) There can be no copyright in an idea, subject-matter, themes, plots or historical or legendry facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
(2) Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the Courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
(3) One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
(4) Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
(5) Where however, apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
(6) As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case-law discussed above.
(7) Where, however, the question is of the violation of the copyright of stage play by a film Producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved."
14. Keeping in view principles laid down in the above mentioned authorities I have examined the case. The case of the plaintiff is that the idea was conceived by their employee Badar Ikram. In support of their version they have filed the affidavit of Ameer Shah Khan who stated in the affidavit that the concept of programme lay out was originally conceived by Mr. Badar Ikram of his company. In the end of the affidavit it has been mentioned that the statement is true, correct to the best of his knowledge and belief. From the above para. It is clear that information was conveyed to Ameer Shah Khan, but the source of information has not been mentioned. As such, it appears that the abovementioned statement of Ameer Shah Khan comes within the ambit of hearsay evidence, which is inadmissible in evidence. However, it is the case of the plaintiff that Badar Ikram is their employee, but it is surprising to note that the plaintiff has not filed the affidavit of Badar Ikram to show that the idea of the programme was conceived by him. There is nothing on record which can prove or support the above contention of the plaintiff.
15. In this type of case the plaintiff has to show that he is owner of the copyrighted work and without such proof no copyright can be created in favour of the plaintiff. Whereas the defendant No,2 has filed the affidavit of Nadeem Baig and Ali Saleem. They both are unanimous that the idea of the programme was conceived by them along with Dr. Umer Adil in the year 2003. As such, there is sufficient material in support of contention of the defendant's plea at this stage.
16. During the course of argument a specific question was asked from the learned Advocate for the plaintiff as to whether any script was written or any programme of the disputed programme was prepared to which he replied in negative. Thus, the plaintiff has neither prepared any script of the programme nor prepared any episode of such programme. It appears that still it is at the stage of idea.
17. Nevertheless, learned Advocate for the plaintiff has pointed out towards document annexure B/1 by arguing that it was a concept paper of Begum Nawazish Ali'. A perusal of this document reveals that it is a copy of a print taken out from a computer. It is not on the writing pad of the plaintiff nor it is signed by any person. With regard to this document the case of the defendants 1 and 2 is that this paper was prepared by the defendant No,2 and it was delivered to the plaintiff by the defendant No,1 at the time of entering into agreement dated 12-7-2005. Thus, plaintiff has failed to prove the authenticity of this document at this stage, as such, the same cannot be relied upon at this stage in support of the claim of the plaintiff.
18. The learned Advocate for the plaintiff has further contended that defendant No,1 had entered into agreement dated 12-7-2005 by which he was not permitted to work for any other organization.
The said agreement has been filed as Annexure `D'. Clause (vii) of the said agreement reads as under;-- "That after completion of second party's contracts with other TV/radio channels for programms aired/unaired/ under production or for which the second party has contributed in any way, the first party shall have the first right of refusal for the all such content/ programms."
19. Learned Advocate for the plaintiff has pointed out towards clause (xii) of the agreement, which reads as under:-- "That the second party has specifically assured the first party that he has not entered into any contract or performance with any party, organization and he has no engagement or agreement with any other firm production house, company, TV Channel or any individual for similar contractual obligations and tenure of agreement."
20. With regard to clause (xii) learned Advocate for the defendant No,1 has stated that it was in respect of programme "Hum Sub Umeed Say Hain". Without going into the controversy at this stage it appears that both the clauses are in conflict with each other. Same can be decided at the appropriate stage of the trial.
21. After considering the material available on the record, I am of the considered view that the plaintiff has failed to prove the prima facie case in their favour.
22. As regards balance of convenience, it is pointed out that the defendant No,2 has already prepared four programmes and the first programme is to be aired on 13-8-2005. As such. Great inconvenience will be caused to the defendants if the action is granted.
23. As regards irreparable loss, the plaintiff has calculated the loss of more than Rs,33.00 million, as such, the loss, if any, can be calculated in terms of money hence no irreparable loss will be caused to the plaintiff if injunction is refused.
24. ' In the light of what has been discussed above all the three main conditions for grant of injunction are not in favour of the plaintiff.
25. Above are the reasons of my short order dated 12-8-2005 by which I had dismissed the injunction application.