Earlier this week, the Times of India published a news report, by its legal correspondent Dhananjay Mahapatra regarding an appeal by Reeds Elseiver that was dismissed by the Supreme Court on November 23, 2016. Titled ‘No copyright over our judgments: SC’, the following are the opening paragraphs of Mahapatra’s report:
For long, a couple of firms had a virtual monopoly over printing judgments of the Supreme Court in book format and selling it to advocates, institutions and others. So much so that one of them claimed copyright over the manner in which it edited and published the judgments.
But on Wednesday, a Supreme Court bench of Justices Ranjan Gogoi and N V Ramana ruled that no one could have copyright over judgments delivered by the apex court. It could be reproduced in its raw form by anyone without the risk of being accused of infringing copyright, the bench said, settling a long-standing dispute.
Mahapatra’s report gives the impression that the Supreme Court set new law by reversing its earlier landmark ruling in the case of Eastern Book Company & othrs. v. DB Modak & Anr. However on actually reading the SC’s dismissal order, it becomes quite clear that Mahapatra has gone out of his way to give a spin to this rather routine dismissal by the Supreme Court.
The appeal in question was filed by Reed Elseiver against the dismissal of an appeal by the Allahabad High Court. The origin of these appeals was a lawsuit for copyright infringement that was originally filed before the District Judge of Lucknow by Eastern Book Company (EBC). We had blogged on the earlier appeals over here. The company had argued that it had a copyright in those versions of the Supreme Court that were edited by its editors. Apart from labelling these judgments as ‘concurring’, ‘dissenting’ etc. EBC’s edited versions also cross-referenced to the para numbers and page numbers of earlier judgments cited by the SC in its judgments. The question of whether such edited version could be protected under copyright law was considered by the Supreme Court in an earlier landmark case called Eastern Book Company & othrs. v. DB Modak & Anr. Our former blogger, Yashaswani had written an excellent summary of the judgment over here.
According to the Modak judgment, although mere copyediting failed to qualify for copyright protection, edited versions of a judgment that delineated the ‘concurring, dissenting’ portions and added references to the page, para number of previously cited judgments, could be protected under copyright law because these tasks required skill and judgment on part of the editors. I reproduce the relevant portion of the SC’s judgment below:
However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like ‘concurring’, `partly concurring’, `partly dissenting’, `dissenting’, `supplementing’, `majority expressing no opinion’, etc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure….Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill.
Returning to the present case, the Allahabad High Court relied on the Supreme Court’s judgment in Modak to confirm an interim injunction restraining Elseiver from reproducing EBC’s edited judgments. Elseiver filed an appeal against this dismissal before the Supreme Court which also dismissed the appeal in an order running into a grand total of 92 words. In fact, I will reproduce the entire order below:
The appellants will be at liberty to publish, sell and distribute the raw judgments of the Supreme Court of India and other Courts obtained from whichever source along with their own head-notes, editorial notes, paraphrasing, explanatory notes, etc. as laid down in Eastern Book Company and others versus D.B. Modak and another [(2008) 1 SCC 1]. We further direct the learned trial Court to expedite the trial and conclude the same as expeditiously as possible. 2. The appeal is disposed of in the above terms. Interim order, if any, shall stand vacated.
In other words, the injunction granted by the lower courts was upheld and the position of the law remains absolutely the same as before. Yet Mahapatra claims that this particular order will “permit new players in the legal publishing field to print SC judgments in book format and challenge the monopoly of a few firms”. How is this possible when nothing has changed?
[Edited on November 30, 2016: To clarify, the Supreme Court’s judgments as released by the SC Registry have always been available to everybody and these can be reprinted by any publisher. However digitising all these judgments takes significant resources and its easier for them to fall back on EBC which has not only edited these judgments but also invested resources to digitise them. Competitors, rather than investing resources in repeating the digitisation, tend to borrow from existing databases without accounting for the fact that EBC has a copyright in the edited SCC judgments.]
If Mahapatra was confused about copyright law, he should have sought a clarification from Pratibha Singh, the Senior Advocate who argued on behalf Reeds Elseiver because if I’m not mistaken Ms. Singh has represented various companies from the Times Group (of which Times of India is a part) in the past. In fact, Mahapatra should perhaps makes this disclosure in the future while reporting on cases where Ms. Singh has argued on behalf of any of the parties that are part of his reportage.