Rupendra Kashyap v. Jiwan Publishing House & Ors.

Court: High Court of Delhi Decided on: 1 July 1996 Presiding Judge: Justice R.C. Lahoti Citation: 1996 (38) DRJ 81

Background

The plaintiff, Rupendra Kashyap, proprietor of M/S Som Sudha Prakashan, was appointed exclusive licensee of the Central Board of Secondary Education (CBSE), defendant No. 3, by written agreement dated 2 July 1991. Under this agreement, the plaintiff was granted the sole licence to print, publish and sell past years’ question papers of CBSE’s Class X and XII examinations from 1990 onwards, at a royalty of twenty-five percent of the printed price. CBSE was required to publish notifications of this exclusive licence in national newspapers, which it did. The plaintiff was also obligated to ensure that no other firm used the question papers illegally and to take legal action in case of violations.

Defendants No. 1 and 2 – Jiwan Publishing House and another – were publishers who had been reproducing and selling CBSE examination question papers commercially without authorisation, a practice they claimed had continued for over twenty-five years since the inception of the Board in 1952. The plaintiff filed a suit for permanent injunction restraining the defendants from publishing, printing or selling copies of the question papers and sought rendition of accounts and delivery up. The present application was for an ad interim injunction pending the suit. CBSE supported the plaintiff’s case.

Defendants No. 1 and 2 raised four principal defences: that no valid assignment of copyright existed in favour of CBSE from the individual paper-setters; that their activity constituted fair dealing under Section 52(1)(a)(i) of the Copyright Act, 1957 since the publications were used for research and private study by students; that the suit was barred by delay, laches and acquiescence given the longstanding nature of their publishing activity; and that granting the plaintiff a monopoly over question papers was contrary to public interest.

 Issues for Determination

Four questions were framed for determination.

1. whether an examination question paper can form the subject matter of copyright.
2. who is the owner of the copyright in CBSE examination papers.
3. whether the plaintiff had a cause of action to bring the suit as an exclusive licensee.
4. whether the suit was barred by delay, laches or acquiescence.

 Key Holding

The ad interim injunction was granted. The Court held that CBSE examination question papers are original literary works capable of copyright protection. CBSE was held to be a “public undertaking” within the meaning of Section 17(dd) of the Copyright Act, 1957 and as the question papers were made under its direction and control, CBSE was the first owner of the copyright. The plaintiff, being an exclusive licensee of CBSE, was entitled to maintain an action for infringement as the owner of copyright within the meaning of Section 54(a) of the Act. The defences of fair dealing, delay and public interest were all rejected. Defendants No. 1 and 2 were restrained from publishing, printing, selling or offering to sell infringing copies of CBSE question papers from 1990 onwards.

 Statutory Provisions Involved

Section 2(o) of the Copyright Act, 1957, defining “literary work.” Section 13(1)(a), which provides that copyright subsists in original literary works. Section 17(dd), which vests first ownership of copyright in a public undertaking where a work is made or first published by or under its direction or control – and the Explanation to that provision defining “public undertaking” as an undertaking owned or controlled by Government, a Government company or a body corporate established under any Central, Provincial or State Act. Section 14, which defines copyright in relation to a literary work as the exclusive right to reproduce, publish, translate and adapt the work. Section 18 and Section 19, governing assignment of copyright, which require the assignment to be in writing and signed by the assignor. Section 2(j), defining “exclusive licence” as a licence conferring rights under the copyright to the exclusion of all other persons including the owner. Section 54(a), which defines “owner of copyright” to include an exclusive licensee for the purposes of Part VIII of the Act dealing with remedies. Section 52(1)(a)(i), which provides the fair dealing defence for research or private study. Sections 123 and 162 of the Indian Evidence Act, 1872, under which CBSE’s claim of privilege over original manuscripts, agreement forms and moderator appraisal forms was sustained in the interest of maintaining examination secrecy.

Reasoning of the Court

On Copyrightability of Examination Papers

The Court disposed of the first question briefly, relying on University of London Press Ltd. v. University Tutorial Press Ltd. (1916) 2 Ch. D. 601 and Agarwala Publishing House, Khurja v. Board of H.S. & I Education. It held that “literary work” under Section 13 is not confined to works of literary merit but includes all works expressed in writing. The word “original” does not imply originality of ideas but only that the work should not be copied and should originate from the author’s own labour and skill. CBSE question papers satisfied both requirements. This point was in any case not contested at the hearing.

On First Ownership – CBSE as Public Undertaking

The Court held that CBSE is a “public undertaking” within the Explanation to Section 17(dd). The term “public undertaking” is not defined in the Copyright Act and the Court interpreted it purposively: the word “public” in context means something belonging to or controlled by the people or the community rather than a private individual. CBSE, constituted by a Government of India resolution, registered under the Societies Registration Act, controlled by the Secretary of the Ministry of Education, composed largely of Government representatives and entrusted with the governmental function of conducting public examinations – was held to be “functionally and structurally impregnated with governmental character.” It was therefore a public undertaking.

The defendants argued that even if CBSE were a public undertaking, the question papers were not made “under its direction or control” since paper-setters were engaged under a contract for service rather than a contract of service. The Court rejected this as a “jugglery of words without meaningful substance.” It held that the distinction between a contract of service and a contract for service is not determinative for the purposes of Section 17(dd). What matters is whether, having regard to the actual terms and conditions, the work was performed under the direction or control of the public undertaking. The evidence – including the affidavit of CBSE’s Secretary, the detailed instructions to paper-setters prescribing syllabus, difficulty level and format and the proforma signed by each paper-setter expressly assigning all rights including copyright to the Board – established beyond doubt that question papers were set under CBSE’s direction and control. The signed proforma constituted a valid assignment in writing under Sections 18 and 19 of the Act, satisfying all formal requirements even if copyright had initially vested in the paper-setter.

On the Plaintiff’s Locus as Exclusive Licensee

The Court held that the agreement dated 2 July 1991 conferred upon the plaintiff a licence to reproduce, publish and sell the question papers to the exclusion of all other persons, including CBSE itself. This satisfied the definition of “exclusive licence” under Section 2(j) and made the plaintiff an “exclusive licensee” who is deemed the owner of copyright under Section 54(a) for the purpose of maintaining infringement proceedings. The plaintiff’s cause of action was therefore established.

On Fair Dealing

The Court rejected the defendants’ claim of fair dealing under Section 52(1)(a)(i) as wholly misconceived. The fair dealing defence protects the person conducting research or private study who personally deals with a literary work for those purposes. It does not protect a publisher who commercially exploits copyrighted material for profit, even if the publication may ultimately be used by students for study. The commercial character of the defendants’ publishing activity disentitled them from invoking this defence.

On Delay and Laches

The Court held there was no delay, laches or acquiescence. The exclusive licence itself was granted only in 1991. Each year’s question paper and each individual paper constitutes a separate copyright and infringement of each gives rise to an independent and fresh cause of action. The suit was filed in 1993 after service of notices and was not delayed.

On Public Interest

The Court firmly rejected the public interest argument. It noted that CBSE’s agreement itself obligated the plaintiff to publish a minimum number of copies, ensuring availability. The plaintiff had no commercial incentive to withhold publication where market demand existed. More fundamentally, the Court held that Indian copyright law – being statutory – does not provide a defence of public interest. An infringement of copyright cannot be excused merely because the infringer claims it serves the public interest.

Doctrinal Significance

This judgment makes three enduring contributions to Indian copyright law.

1. It authoritatively settles that examination question papers constitute original literary works under the Copyright Act, 1957, bringing together and applying the foundational principle from University of London Press that “literary work” requires labour and skill, not literary merit or originality of ideas. This has practical significance across all examining bodies in India.
2. The Court’s interpretation of “public undertaking” under Section 17(dd) is the leading Delhi High Court authority on the provision. By adopting a functional and structural test – looking at the degree of governmental character, control and public purpose – rather than a rigid form-based test, the Court ensures that bodies like CBSE which exercise governmental functions without being incorporated under statute are brought within the provision. The holding that the direction-or-control requirement under Section 17(dd) is not contingent on the paper-setter being employed under a contract of service is an important clarification that prevents patent evasion of the provision through contractual structuring.
3. The Court’s categorical rejection of the fair dealing defence for commercial publishers is doctrinally significant. It draws a clear line between the protected user – the individual researcher or student who personally engages with a copyrighted work – and the commercial intermediary who reproduces the work for profit. The defence under Section 52(1)(a)(i) does not travel with the downstream use; it is personal to the person conducting the research or study. This principle has wide application across educational publishing.
4. The Court’s holding that Indian copyright law provides no public interest defence to infringement is an important statement of the limits of equitable arguments in copyright litigation. While courts may take public interest into account in fashioning relief in appropriate circumstances, it cannot serve as a substantive defence to a finding of infringement under the statutory framework.

Articles Case Laws Copyright Article Copyright case laws Patent Article patent case laws Trademark Article Trademark case laws