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Copyright over judgments: Supreme Court reiterates ‘DB Modak’ directions

Aditya AK

Two law publishing houses – Eastern Book Company and Reed Elsevier (whose subsidiary is LexisNexis) – went toe-to-toe in the Supreme Court over their rights as regards publishing of Supreme Court judgments.

A bench of Justices Ranjan Gogoi and NV Ramana yesterday ordered that the appellants, Reed Elsevier is at liberty to publish, sell and distribute “raw judgments” of the Supreme Court of India and other Courts irrespective of the source from which they are obtained.

However, the head-notes, editorial notes, paraphrasing and explanatory notes, foot-notes, internal referencing etc. should be their own as laid down in the case of Eastern Book Company and others v. DB Modak and another [(2008) 1 SCC 1].

The matter dates back to 2012, when EBC (which publishes Supreme Court Cases) sought a permanent injunction from the District Judge, Lucknow to prevent their competitors, Reed Elsevier from publishing the copies of the judgments published by them. Their claim was based on the 2008 judgment of the Supreme Court in DB Modak as per which copyright vests in the following:

a) Creation of paragraphs in their copy-edited version by segregating existing paragraphs in the original text by breaking them into separate paragraphs and/or by clubbing separate paragraphs, and in the paragraph numbering.

(b) Internal referencing, after providing uniform paragraph numbering to multiple judgments.

( c) Inputs in respect of editor’s judgment regarding the opinions expressed by the Judges by using phrases like “concurring”, “partly concurring”, “dissenting”, “partly dissenting”, “supplementing”, etc.

(d) Editorial notes.

(e) Head notes

EBC’s claim was that the use of their copies by Reed Elsevier violated the copyright that subsisted in EBC with respect to the above categories.

It was their contention that the edition of SCC is based on the Editors reading of the whole judgment and understanding of the question of law and facts involved.

“They determine whether to label it as “concurring”, “partly concurring”, “dissenting” or “partly dissenting” or “supplementing” etc. In these tasks, the Editor uses creativity and legal skill. A very significant role done by the Editor is to input the references, clarification and explanation to the raw text of the judgments, either in the text or as a footnote and most importantly to put the editorial notes and its comments. For easy and quick understanding of the case, the editor culls out various rulings laid down in each case, which makes available to the readers the law laid down under different statutes.”

Reed Elsevier, on the other hand, argued that EBC was merely reproducing text from judgments that are freely available on the Supreme Court website and other sites.

“…most of the judgments are procured from the Registry of the Hon’ble Supreme Court, the remaining are sourced from other websites and journals including the website of the Judicial Information System more popularly known as “JUDIS”…The website is easily accessible to all and the information available falls within the public domain…

Regarding the categories protected by the Supreme Court judgment of DB Modak, it was Reed Elsevier’s argument that

‘Such insertions are garden variety and absolutely devoid of any modicum of creativity and as such it clearly does not quality the test of minimum creativity…nothing but a verbatim reproduction of the judgments as are reported by the JUDIS…”

The trial court had ruled in favour of EBC and granted an interim injunction. An appeal was then filed in the Allahabad High Court which had upheld the trial court’s verdict. This prompted Reed Elsevier to approach the apex court.

The Supreme Court in its order made it clear that Reed Elsevier is free to source “raw judgments” of the Supreme Court or any other court from any source.

However, this does come with a rider that the head-notes, editorial notes, paraphrasing, explanatory notes, etc. as laid down in DB Modak case should be “their own” and Reed Elsevier cannot use EBC’s content with respect to that.

“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 DB Modak and another [(2008) 1 SCC 1].”

With this direction, the court vacated the interim order. The main case will now resume in the trial court.

The order would mean that the Court has, indeed, reiterated that copyright subsists in head-notes, footnotes, paragraphing, para-numbering, internal referencing etc. as laid down in DB Modak.

During the course of arguments, which have been going on since 2014, Senior Advocates Aryama Sundaram and Pratibha Singh, along with Priyanka Khimani appeared for Reed Elsevier and LexisNexis, while senior counsel KV Viswanathan represented EBC.

Note: This piece was updated at 8.30 pm on November 25, 2016 after the Supreme court order was published on its website.

Read the order here.

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