| a dramatic work may also come within the purview of literary work being a part of dramatic literature. paragraph 12 of the will namely residuary clause shall apply in the instant case apart from the areas which are otherwise covered by paragraph 11 of the will. the residuary clause will apply because it is well settled that no part of the stay lies in limbo. it was also not a case where respondent in any manner whatsoever waived her right. decree for injunction is an equitable relief. the courts while passing a decree for permanent injunction would avoid multiplicity of proceedings. the court while passing such a decree is obligated to consider the statutory provisions governing the same. for the said purpose it must be noticed as to what is a copyright and in respect of the matters the same can not be claimed or otherwise the same is lodged by conditions and subject to statutory limitation. in r g anand vs m s delux films amp ors 1978 4 scc 1181978 indlaw sc 294this court held the following. 1 there can be no copyright in an idea subject matter themes plots or historical or legendary 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 prospective 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. section 52 of the act provides for certain acts which would not constitute an infringement of copyright. when a fair dealing is made inter alia of a literary or dramatic work for the purpose of private use including research and criticism or review whether of that work or of any other work the right in terms of the provisions of the said act can not be claimed. thus if some performance or dance is carried out within the purview of the said clause the order of injunction shall not be applicable. similarly appellant being an educational institution if the dance is performed within the meaning of provisions of clause i of sub section 1 of section 52 of the act strictly the order of injunction shall not apply thereto also. yet again if such performance is conducted before a non paying audience by the appellant which is an institution if it comes within the purview of amateur club or society the same would not constitute any violation of the said order of injunction. |