YOGESH BHARDWAJ Vs. HIMACHAL PRADESH UNIVERSITY

JUDGEMENT

(1.) THIS is an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, preferred by defendants No. 3 and 4, for rejecting the plaint, for want of non -disclosure of cause of action muchless an enforceable one, which has been resisted by the plaintiff. (i) In short, the facts giving rise to the present application can be stated thus. The plaintiff filed the present suit against the defendants for infringement of Copyrights and non -acknowledgement of his Moral Rights being author of "PROTOCOL" being Guide of defendant No. 3 thus seeking damages and permanent injunction. (ii) As a matter of fact, the plaintiff is a dental surgeon in the State Dental College and claims that he is well known Oral and Maxillofacial Surgeon (O & MS). He garnered wide recognition and respect in his field and had also presented papers in the national and international conferences. In April -May, 2007, he being Professor and Head of the Department of O & MS in State Dental Government College and was also performing surgeries on Indoor patients. Besides this, he was required to act as a Guide to the students pursuing Master of Dental Surgery (O & MS). Thus, he was instrumental in providing topics, data and all other co -related information for the submission of compulsory dissertation by the students pursuing such courses. He was also appointed to act as Guide for defendant No. 3 Dr. Prem Lata, thus in order to present a unique dissertation, he provided certain data and patient details of operations conducted by him between June, 2007 to June, 2009. Besides this, he also offered opportunity to assist and observe the plaintiff during numerous complicated surgeries being conducted by him on various patients. (iii) That as per norms of submitting dissertation, defendant No. 3 alongwith the plaintiff prepared "PROTOCOL" for approval of the dissertation for the degree of M.D.S. (O & MS), which was a blueprint on which the final dissertation was to be and is based. It included the draft presentation for final dissertation as well as the manner in which the research and observations of the surgeries was to be presented. Accordingly, "PROTOCOL" was submitted to the defendant -University. (iv) It is further averred that the photographs so taken during such surgeries, were not a part and parcel of his duties as a Dental Surgeon, but it was a separate artistic work in his own right of which he is the sole owner and author of the copyright in the said photographs. The photographs and the opportunity to observe the surgeries was provided by him to defendant No. 3 in his capacity as Guide and teacher, but in between he had to relieve himself from the position of Guide of defendant No. 3, but defendant No. 3 had retained all data, photographs, notes etc. of the surgeries performed by the plaintiff which was provided to her. (v) In the month of September /October, 2010, the plaintiff came to know that despite his removal as a Guide defendant No. 3 submitted final dissertation. On its inspection by him, he was shocked to note that it was completely based on the "PROTCOL" prepared by him, which reveals that the same is in effect a derivative work as defined under the Indian Copyright Act of the "PROTOCOL". Thus the dissertation was formulated/created by him with defendant No. 3 during the time of creation of the "PROTOCOL" and the final dissertation is nothing but the same "PROTOCOL" albeit with a few cosmetic changes and the same, perhaps, were made by defendant No. 3 to surreptitiously or clandestinely cover up her theft of the copyrighted work knowing fully well that the photographs and other material belonged to plaintiff, whereas defendant No. 3 in her dissertation, mentioned that the work for the same was undertaken under the guidance of defendant No. 4 whereas he never conducted any such surgeries as mentioned in the dissertation. (vi) He further submitted that two of the surgeries were performed beyond the period as mentioned in the dissertation. Despite knowing fully that the photographs were created by the plaintiff and the same belonged to him, defendant No. 3 did not recognize or acknowledge the authorship of the plaintiff with respect to the manner of presentation of the final dissertation as well as the photographs taken by him during such surgeries. (vii) It is also his case that the work of defendant No. 3 was analogous to the work of an Apprentice and thus as per the extant provisions of the Copyright law, work of an Apprentice relates back to the teacher and the copyright in such work vests with the teacher alone. The plaintiff pleaded collusion between defendants No. 3 and 4. Thus, according to him, it is infringement of the copyright and the moral rights.

(2.) ON the above allegations, the plaintiff pleaded cause of action in the following manner: 33. That the cause of action for the present suit first arose in September, 2010 when the plaintiff became aware of the thesis containing infringing work being submitted by defendant No. 3. That the cause of action further arose on October, 2010 when the plaintiff caused a legal notice to be served upon defendant No. 1 bringing the above said infringing activities to its notices. That the cause of action further arose when the defendant No. 1 replied to the notice vide reply dated November 20, 2010 informing the plaintiff of initiating an inquiry qua the result of the said inquiry. Hence the cause of action is a continuing one and continues till date.

(3.) THE suit was resisted and contested by the defendants. All the defendants have denied the enforceable cause of action. They disputed the existence of legal and valid copyright in favour of the plaintiff qua the work in question. Alternatively averred that assuming without admitting that even there exists such a right, then the acts alleged in the plaint would not amount to an infringement of a copyright under the Act. The defendants also pleaded that most of the averments made in the plaint are misleading and denied. It is specifically submitted that the Post Graduate Course (MDS -Masters in Dental Surgery) was introduced for the first time in the HP Government Dental College in the year 2006. Defendant No. 3 on the basis of competitive examination got selected in the branch of O & MS of the College in the year 2007. At that time there was only one Professor, i.e., the plaintiff, who was also the Head of the Department and one Associate Professor. Besides these, two Post Graduate students of 2006 batch were there. Under the relevant rules, only who is a Professor could be the Guide of a MDS student. As such there was no option with the students but to have the plaintiff as their guide. Accordingly two PG students of 2006 batch and two PG students of 2007 batch including defendant No. 3 had to have the plaintiff as their guide. Thus, there was no question of plaintiff consenting to be the Guide of defendant No. 3. (ii) It is further pleaded that the duty of the Guide is to provide the topics and the data concerning the topic and all other relevant information pertaining to the data and the topic to his students in order to help the student to have his PG degree. Plaintiff has not done any charity work while agreeing to help defendant No. 3 in her PG studies. It was his duty to render help to her. The plaintiff had to discharge his duties as a Guide and the defendant aforesaid was bound to pursue her degree under him as a student. (iii) Defendant No. 3 stated that the "PROTOCOL" was prepared by her under the plaintiff, who was her Guide at that time, but denied that source of entire data for preparing the "PROTOCOL" was the plaintiff although it was otherwise his duty to provide the same. But according to her, she had collected the data herself. Pre -operative and post - operative data of patients connected with the topic was taken by the said defendant. The photographs were taken by her alongwith other students of the Dental College connected with the topic assigned to her and were rightly and lawfully used by her. She denied that the plaintiff was useful and helpful teacher, but she alleged that he always looked for ways and means to harass her to pressurize her into succumbing to his lust. His focus was never aimed at guiding defendant No. 3 but to harass and humiliate her. Though in terms of the applicable rules and conventions, she has been compelled to give credit of her "PROTOCOL" to the plaintiff as her guide, but he in fact did not deserve this credit as she never received any help, suggestion, encouragement, anything worth the name of guidance from him. Further that the plaintiff indulged unbecoming acts which resulted into lodging of FIR against him and the plaintiff had been facing trial in the Court and the plaintiff was put under suspension on 18.9.2010. Even the students were compelled to file CWP No. 2892 of 2010 inter alia praying for a Guide and to supervise the completing of their PG degree. The Court realizing the gravity of the situation, directed the Dental Council of India to appoint another Guide for defendant No. 3 and ultimately defendant No. 4 was so appointed when the dissertation was at the final stage and after its completion it was presented to the concerned authorities in terms of the orders passed by this Court as well as by the Director, Medical Education and HP University. (iv) It is also pointed out that, during the year 2008 onwards Mrs. Dr. Ashu Bhardwaj, wife of the plaintiff was the Principal of the State Dental College. The request was made that they be not associated with the final examination of the students, but despite that plaintiff had tried to interfere in the completion of degree. But however, overcoming all the hurdles created by the plaintiff, she was able to complete her degree and now the plaintiff is trying to make her life miserable by continued harassment. (v) It is also denied that data aforesaid was the exclusive property of the plaintiff. The surgeries allegedly conducted by him were not invented by him. He was just following the procedure invented by international surgeons. These surgeries are performed by all Maxillofacial Surgeons all over world. There is nothing patented about them. The entire edifice of the plaint is allegedly misplaced. According to the defendant, it is strange that the students should not use what has been taught by their teachers and further that in this case it was the teacher who indulged in harassing the students as he could not digest that the defendant was able to complete her MDS degree. (vi) The maintainability of the suit alongwith cause of action, both have been disputed. Thus prayed for dismissal of the suit.