WIJESINGHE MAHANAMAHEWA AND ANOTHER
COURT OF APPEAL.
T. D. G. DE ALWIS. J. AND DHEERARATNE, J.
C.A. 70/77 – D C. MOUNT LAVINIA 77483/M.
FEBRUARY 5. 6 AND 11,1986.
Copyright-System of Sinhala shorthand-Rival systems (Canter system and Wijayasystem)-Infringement-Copyright Act of 1911.
The plaintiff (Austin Canter) formulated a system of Sinhala shorthand (Cantei system)based on the Gregg system of shorthand in six works (XI to X6) published between1952 to 1964. The 1st defendant Wijesinghe Mahanamahewa put forward a systemof Sinhala shorthand (Wijaya system) (Y1) also based on the Gregg system which hepublished in 1967. Although the 1st defendant adapted the Gregg signs and a fewsigns used by the plaintiff, Y1 did not merely consist of those signs only. It alsocontained a wealth of other information regarding shorthand The plaintiff sued thedefendant for infringement of copyright by publishing substantially the plaintiff'sshorthand system.
Whether a reproduction is substantial must be decided by its quality rather than itsquantity. The reproduction of a part which by itself has no originality will not be asubstantial part of the copyright and therefore will not be protected.
Copyrights are not concerned with the originality of ideas but with the expression ofthought.
The 1st respondent had adapted the entire Gregg symbols which the plaintiff hadhimself copied from Gregg. They could not therefore form a substantial part of plaintiff'sworks, owing to their lack of originality.
The symbols used by the 1st defendant which are similar to the symbols used bythe plaintiff are so small in number, that they cannot be said to form a substantial part ofthe plaintiff's works.
As the 1 st defendant had not reproduced a substantial part of the plaintiff's works therecould not be any infringement of the plaintiff's copyright.
Cases referred to:
Pitman v. Hyne-(1884-.1885) TLR Vol. 1, p. 39.
Mac Millan & Co.. Ltd. v. Cooper-(1923-1924) TLR 186. 190.
University of London Press Ltd. v. University Tutorial Press Ltd.- 2 Ch.D.601.608,609.
Warwick Film Productions Ltd. v. Eisinger and Others - 3 All ER 367.
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. - 1 All ER 481.
APPEAL from judgment of the District Judge of Colombo.
H. W. Jayewardene, Q.C. with Luxman Perera and Miss T. Keenawinna fordefendant-appellant.
J. Herath for plaintiff-respondent.
Cur. adv. vult.
April 4, 1986.
This is an appeal made by the defendants from the judgment of theDistrict Court, awarding damages for the plaintiff against them, forinfringement of copyrights of the plaintiff, pertaining to a system ofSin.hala shorthand.
~ For the proper appreciation of the facts involved in this case, itwould ndt be out of place, to begin by stating what shorthand is, andmaking a brief reference to its history. Shorthand is a system of writingrapidly, by substituting characters, symbols or abbreviations forletters, words and phrases. This art is not of recent origin. It is said tohave existed, in ancient Greece and Egypt. In the 1st century B.C. inRome, Marcus Tullius Tiro, devised a system with which he took downthe speeches of Cicero. This system, known'as Tironian, is said to
have been employed by others to record the proceedings of theRoman Senate. However, the origin of modern shorthand, is traced toEngland, vyhere a number of different systems thrived, at least fromthe- 16th century A.D. The best known English systems are. thePitman system, introduced by Issac Pitman in 1837, and the Greggsystem, introduced by John Robert Gregg in 1888. Gregg took hissystem to the U.S.A. in 1893. The basic difference in these twosystems is this. The Pitman system is based strictly on phoneticprinciples, with characters or symbols representing each sound orcombination of sounds, while the Gregg system is based purely onlinguistic principles, with characters or symbols representing theletters of the English'alphabet. Gregg characters are not shaded andmay be written on unruled paper, as the position in relation to the lineof writing, is not significant. (New Standard Encyclopaedia 1981).These two English systems, in course of time, spread to many othercountries and languages.
With the impending switch over of government business to Sinhalain Sri Lanka, a number of enterprising men proficient in Sinhala,embarked on evolving Sinhala shorthand systems. One was theplaintiff Austin Canter, another was the 1st defendant WijesingheMahanamahewa. That the government of the day too evinced aninterest in this direction, is seen by the fact that the Sinhala shorthandsystems oame within the purview of two government committeesof inquiry, one headed by Sir Arthur Wijewardene in 1952, andanother headed by Dr. Nandadeva Wijesekera in 1964. Both theplaintiff and the 1 st defendant claim to have appeared before thesecommittees and presented their respective shorthand systems.Nothing is known as to what transpired before the WijewardeneCommittee, because its report was not produced at the trial.However, the 1 st'defendant annexed to his pleadings and produced atthe trial, the report of the Wijesekera Committee, which had beenpublished as a sessional paper in 1969. It is relevant to note thatbefore the Wijesekera Comrqittee, eight persons had presented theirshorthand systems. Out of these eight, four persons including theplaintiff and the 1 st defendant, had based theirs on the Gregg system.
The plaintiff had been a Sinhala teacher, whose knowledge ofEnlgish, in his own admission, did not go beyond the alphabet. Hestudied Sinhala shorthand by himself, evolved a system, and became ateacher in Sinhala stenography. He had been lecturing in Sinhalashorthand at the government technical colleges since 1956. Thereare six published works in Sinhala shorthand to his credit. They are"Canter Laghulekhanaya" (Canter's Shorthand) 1952. producedmarked XI; "Canter Wega Pada Hang Mala" (Canter's SpeedShorthand Series) 1954, produced marked X2;"Gregg Hela 'PadaHana Puhunuwa" (Gregg Sinhala Shorthand Exercise) 1957, producedmarked X3; "Canter Hela Pada Raliya" (Canter's Sinhala ShorthandSeries) 1960, produced marked X5; "Gregg Kramayen SinhalaLaguhulekhana Guru Rukula" (Sinhala Shorthand in GreggSystem-Handbook for Teachers) 1962, produced marked X64; and"Wega Rukula or Hela Pada Hana" (Speed Aid or Sinhala Shorthand)1964, produced marked X6. Of these books X1 ,’X2, X5 and X6 makeno reference to Gregg. In X3 the title itself suggests that the book ison the Gregg system, while in X4, in the preface, the plaintiffacknowledges that the 'Canter system' is based on the Gregg system.But. unlike the Gregg system, the Canter system, although having itsorigin in the former, is essentially written on ruled paper.
The 1st defendant Wijesinghe Mahanamahewa, had b’eeh anEnglish stenographer since 1952, using the Gregg system. Whilestudying English stenography in 1948, he got himself interested inSinhala stenography. Thereafter he devised a system of Sinhalashorthand called the 'Wijaya system' based on Gregg. In 1967, hepublished his book on Sinhala shorthand called 'Wijaya LaghulekhanaSangrshaya' (Wijaya's Compendium of Shorthand) produced marked1D3, in Roneoed Form and offered it for sale. In 1D3, the prefacerefers to the fact that his shorthand system is based on Gregg. In1968, he negotiated with the 2nd defendant company, to publish hisbook in printed form. This was done in 1972 (produced marked Y1).This is where the trouble arose.
The plaintiff filed this action on 14.11.1972, alleging that hiscopyrights have been infringed by the defendants. By para. 5 of theplaint, the plaintiff averred that he is the author of X1 to X6. By para.6. he averred that those books were composed and compiled by himlargely based on the forms used in the Gregg system. Para. 7 readsthat the plaintiff is presently engaged-in teaching students of the SriLanka Technical College in a shorthand system known as the "CanterShorthand System", which had been recognized in Sri Lanka fromabout the year 1 951 and the plaintiff claims that he is the "proprietor"of the copyrights to 'Canter’s Shorthand System in Sinhala'. Para. 8
reads that without the plaintiff's consent and authority, on or about1972, the 1st and 2nd defendants reproduced and published thebook called 'Wijaya Laguhulekhana Sangrahaya' (Wijaya'sCompendium of Shorthand) marked Y1. Para. 9 reads that in Y1, thedefendant claims that his work is based on the Gregg Englishshorthand system. Para. 10 reads that the defendants have infringedthe plaintiff's copyright in 'Canter's Sinhala Shorthand System' byreproducing and or publishing substantially the plaintiff's SinhalaShorthand system.'Para. 11, which is quite significant, states that theplaintiff annexes to his plaint marked A, (later produced marked X10)a document showing in the columns reading from left to right
Letters of the English alphabet used in Gregg's shorthandsystem:
Signs of the Gregg shorthand system representing such lettersof the English alphabet ;
Letters of the English alphabet selected by the plaintiff and usedin the plaintiff's system;
The signs adapted by the plaintiff from the Gregg shorthandsystem to represent the said letters in the Sinhala alphabet;
The letters of the Sinhala alphabet chosen by the 1stdefendant;
Gregg's shorthand forms claimed to have been chosen by the1st defendant to represent the said letters of the Sinhalaalphabet;
Signs adapted by the plaintiff for frequent usage; and
Signs adapted by the 1 st defendant for frequent usage.
Para. 12 reads that "the said infringement" by the 1st and 2nddefendants of the plaintiff's copyrights, has caused the plaintiffirreparable and irremediable loss, damage and injury.
The defendants in their joint answer admitted the authorship of theplaintiff's books XI to X6. While denying any infringement ofcopyrights, it was averred that after much research, the 1st defendanthimself had evolved a system of shorthand based on the Greggsystem. The .defendants appended to their answer, a copy of thereport of the Wijesekera Committee published in 1969, in whichreference is made both to the plaintiff's system and the 1stdefendant's system.
The case proceeded to trial on the following main issues
Is the plaintiff the author of a Sinhala shorthand system based onthe Gregg system as pleaded in para. 6?
Have the defendants by publishing Y1 infringed the plaintiff'scopyright in the said Sinhala shorthand system by .reproducingand publishing substantially the plaintiff's Sinhala shorthandsystem ?
Do the systems employed by the plaintiff and the 1 st defendanthave a common source in the English Gregg system?
Is the plaintiff's action prescribed in law?
(7) Is the plaintiff's Sinhala shorthand system entitled in law to acopyright?
The learned trial judge gave judgment for the plaintiff as prayed for,answering issues No. 1,2,4 and 7 in the affirmative and issue No. 5in the'riegative.
The. law relating to copyright in force at the time this action wasfiled, was the Copyright Act 19T1 of England: In terms of section 1 ofthat Act, what is susceptible of copyrights, as far as it applies to thefacts of this case, is an "original literary work." The Act confers uponthe owner of the copyright of a literary work, inter alia, exclusive rightto produce or reproduce the work or any substantial part thereof.Section 10 of the Act provides that an action in respect of aninfringement shall not be commenced after the expiration of 3 yearsnext after the infringement.
Learned counsel for the defendant-appellants contended, assumingthat the plaintiff owns any copyright, the action is prescribed in law,because Y1 was originally published in 1967 as 1D3 and offered for.sale. As to whether 1D3 was actually published in 1967, we do nothave the benefit of any positive finding of the learned trial judge.Assuming that it was published in 1967 in roneoed form, printing and
publishing the book in 1972, would in my opinion, be a different act ofinfringement, which could give rise to another cause of action and Ifind it difficult to persuade myself to think otherwise.
Before I proceed to deal with the other submissions made by thelearned counsel for the defendant-appellants, it is necessary to discernthe real complaint of the plaintiff, regarding the act of infringementalleged to have been committed by the defendants. It appears to methat the gravamen of the plaintiff's complaint is contained in thedocument X10, filed along with the plaint. A close scrutiny of thisdocument would reveal the following matters
Symbols used by Gregg for some letters of the English alphabethave been used by the plaintiff for the corresponding letters ofthe Sinhala alphabet. The 1st defendant has done the same;
For Sinhala vowels ' qL' c?t'. ’ e>' and' e>' the plaintiff has used avariation of Gregg's symbol used to indicate the letter 'A'. The1 st defendant's symbols used to indicate these 4 Sinhala vowelsare quite similar;
For the Sinhala consonant 'a' the plaintiff has used the Greggsign for the letter T, the letter T, having no equivalent sound inSinhala. The defendant has done the same;
For the_ Sinhala letter '© ‘ the plaintiff has used the symbolemployed by Gregg for the letter 'V'. So has the 1st defendant.
For the Sinhala letter'' the plaintiff has devised a symbol and
the 1st defendant has used the same;
(7) For the sign used in the Sinhala language to indicate that aconsonant is not followed by a vowel sound (eo(° d*S©) theplaintiff has adapted a certain sign. The 1 st defendant has usedthe same.
It could be seen that the similarities enumerated in (a), (£>) and (d)could be the result of two persons adapting Gregg signs. But itappears to me. that similarities in (c), (e) and (f) cannot certainly bedue to any coincidence. In fact, although the 1st defendant deniedcopying any symbols from the plaintiff s works, he frankly admittedthat he purchased a copy of XI in 1952. Perhaps, this may account forthe similarities in (c) (e) and (f).
I would now refer to the plaintiffs evidence on this matter:
Q – What is your complaint?
A – That the system of the 1 st defendant has been selectedon the same strokes put by me.
Q – In respect of the existing Gregg system signs' which youhave used for the Sinhala alphabet he has used theidentical signs?
A – Yes, these new signs which I say I invented for the firsttime in respect of certain letters of the Sinhala alphabethave been used by the 1 st defendant.
Q – Have you shown the similarities in columns 5 and 6 (ofX10)?'
Q-How many signs has the defendant copied?
A-Eight. What I have, taken from the Greggsystem,the
defendant has copied it entirely. Eight of myspecial signs
have been copied by him.
Again, in answer to court, the plaintiff has given the followingevidence:
Q – Has the defendant used any signs other than Gregg signsand your signs?
A-He has used entire Gregg signs.
Q – Are there signs of his own which are not found in yourwork or in Gregg system?
A – No, what I say is that he has no right to use the Greggsystem because I have obtained the rights. He has no rightto use my symbols and signs.
The plaintiff, as stated earlier, was one of the persons whoappeared before the Wijesekera Committee in 1964. This committeewas appointed to report on the suitability of various shorthandsystems, and its report as stated earlier, was published only in 1969.The plaintiff stated in court, that until 197 2, when, he found areference to that report in the preface to Y1, he was unaware that thisreport had been published and that he made no attempt to find out the
findings of the committee earlier. This appears to me to be strangeconduct on the part of a person who appeared before that committee,to seek the advancement of his own shorthand system. The reason forthis denial of the knowledge of the report, is probably due to the factthat the report makes pointed reference to the existence of foursystems of Sinhala shorthand based on Gregg. These systems aregiven side by side, in tables published in the report. One cannot butobserve the striking similarities between the signs used by the plaintiffand the defendant, when one refers to those tables. In court, theplaintiff was vehement in his denial that he knew of the existence ofany other Sinhala shorthand systems based on Gregg, until he readthe report of the Wijesekera Committee in October 1972.Surprisingly, this is what the plaintiff had chosen to say in his prefaceto X4 published in 1964; literally translated into English it reads-
"This book is a general aid to fashion in a uniform style, theknowledge of those who have already learnt and those learningSinhala shorthand based on the Gregg system. It will generally serveanybody who has learnt Sinhala shorthand based on the Gregg' system. It is a treasure trove to those who follow the ’Canter" andother systems which are considered to be based on the Greggsystem and which are being currently practised in the country."
It appears from the evidence of the plaintiff that by the letterproduced marked X8 dated 22.06.1954, he got authority fromMcGraw-Hill Book Co. of New York, to "adapt and translate Greggsystem of shorthand into Sinhala language for Ceylon " It has not beenestablished by the production of that letter that McGraw-Hill Co. hasany copyrights to the Gregg system and that the plaintiff got anyassignment of those copyrights. Even if it is established thatMcGraw-Hill Book Co. did have any copyrights, X8 would in myopinion, only serve to make the plaintiff a licencee to use thecopyrights, the ownership of the copyrights remaining withMcGraw-Hill Book Co. I am in agreement with the learned counsel forthe defendant-appellants that the learned trial judge was in error whenhe stated in his judgment that-
"if in fact it was the plaintiff who first adapted the English Greggsystem of shorthand for the Sinhala language as claimed by him,then there is no reason why the system should not be entitled tocopyright, particularly as he has obtained the exclusive right toadapt the Gregg system."
Of course, one cannot deny that there can exist a copyright in asystem of shorthand. It was so decided in the case of Pitman v.Hyne(1). But, the system .must be shown to exist in any work orworks, for otherwise, it would take more the guise of a 'patent' ratherthan a copyright.
I will now examine whether the plaintiff has established any claim tocopyrights in his books X1 to X6. Learned counsel for thedefendant-appellants contends that these books cannot attractcopyrights as they are not 'original literary works' because they areplagiarized and further no skill or labour has been employed by theplaintiff to produce them. It is apposite to quote in this Connection theobservations of Lord Atkinson in MacMillan and Co., Ltd. v.Cooper (2):
"What is the precise amount of knowledge, labour, judgment orliterally skill- or taste which the author of any book or othercompilation must bestow upon its composition in order to acquirecopyrights within the meaning of the Copyright Act of 1911, cannotbe defined in precise terms. In every case it must depend largely onspecial facts of that case, and in each case be very much a questionof degree."
As regards the requirement of originality, it appears to me thatcopyrights are not concerned with the originality of ideas, but with theexpression of thought. In the case of University of London Press Ltd. v.University Tutorial Press Ltd.(3) Peterson, J. said:
"In my view the words 'literary work' cover work which isexpressed in print or writing irrespective of the question whether thequality or the style is high. The word literary' seems to be used in asense somewhat similar to the use of the word 'literature' in politicalor electioneering literature and refers to printed matter. Papers setby examiners are in my opinion 'literary work' within the meaning ofthe Act.
Assuming they are literary work', the question is whether they 'are original. The word original does not in this connection mean thatthe work must be the expression of original or inventive thought.v Copyrights are not concerned with the originality of ideas, but withthe expression pf thought and, in the case of literary works' withthe expression of thought in print or writing. The originality which is-
required relates to expression of thought. But the Act does notrequire that the expression must be in original or novel form, but that
work must not be copied from another work, that it shall originatefrom the author."
Copinger on the Law of Copyrights (7th edition) at page 52 states:
"It is submitted that copyright can be claimed in a work which is apiracy of another copyright work, provided that the piracy is not aslavish copy, or possibly obtained by fraud."
If one were to examine plaintiffs works X1 to X6. one would findthat they do not merely contain.the characters or symbolsrepresenting the alphabet taken from Gregg. They contain a wealth ofother material, like rules of shorthand, characters or symbols forvarious chosen words, phrases and idioms and the like. I have nodoubt that the plaintiff has used in abundance his knowledge, labour,judgment and skill to produce his books X1 to X6. Copying fromGregg the symbols representing the alphabet, does not to my mind,make the plaintiffs works piratical, lacking in originality, and therebydestitute of any copyrights.
The next question to be decided is whether the defendants haveinfringed the copyrights of the plaintiff by "reproducing the work or anysubstantial part thereof in any material form whatsoever," within themeaning of the Copyright Act. The complaint of the plaintiff as couldbe seen from the plaint and his evidence, is that the l st defendant hasreproduced the same characters or signs, which he. the plaintiffadapted from Gregg and eight signs he designed himself. I layemphasis on this fact, because, learned counsel for theplaintiff-respondent drew our attention to certain passages in thecross-examination of the 1st defendant, indicating that some rules ofwriting shorthand, containing in Y1. appear to be similar to thosecontaining in X1 to X6. This was certainly not the case of the plaintiff,either in his plaint or his evidence, and therefore. I am not inclined toattach much importance to those similarities*. Although the 1stdefendant has adapted the Gregg signs and a few signs used by theplaintiff. Y1 does not merely consist of those signs only. It alsocontains a wealth of other information regarding shorthand.
Learned counsel for the defendant-appellants contends that whathas been reproduced by the 1 st defendant does not form a substantialpart of the plaintiffs copyright works. Learned counsel for thedefendant-appellants placed strong reliance in this connection, on thecase of Warwick Film Productions Ltd. v. Eisinger and Others (4).. Thefacts of that case show a marked similarity to the facts of the instantcase. I will briefly refer to the facts of that case. In 1911 or 1912abook based on the well-known three trials in which Oscar Wildefigured, was published by an anonymous author; who obviously hadaccess to shorthand notes of the three court proceedings. This bookwas entitled 'Three Times Tried . In 1948 the famous biographe.rMontgomery Hyde, published his book The Trials of Oscar Wilde'.The account of the trial proceedings in Hyde's book was substantiallydrawn from Three Times Tried', but certain portions were Hyde'sown contribution. Two companies contemporaneously ventured toproduce two separate films based on the tragedy of Oscar Wilde. Theplaintiff company which produced one film, had obtained an exclusivelicence of certain rights of copyrights in Hyde's book. In addition, theplaintiff company claimed copyright in Three Times Tried'’ whichclaim, it failed to prove at the trial. The script for the 2nd film waswritten by the 1st defendant Eisinger, who admitted that parts ofspeeches of counsel, words of judges, questions to and answers ofOscar Wilde were reproduced from Hyde's book. This case wasdecided on the English Copyright Act of 1 956 in which too, the words"reproduction of a substantial part" appear, as in the 1.91 1 Act. Atpage 385, Plowman, J. said:
"the question is whether the defendant's film reproduces asubstantial part of Hyde's book, not whether the reproduced part ofthe Hyde's book forms a substantial part of the defendant's film."Then, Plowman, J. proceeded to quote the following words of LordPearce in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. (5):
"Whether a part is substantial must be decided by its qualityrather than its quantity. The reproduction of a part which by itselfhas no originality will not be a substantial part of the copyright andtherefore will not be protected. For that which will not attractcopyright except by reason of its collocation, will, when robbed ofthat collocation, not be a substantial part of the copyright andtherefore the courts will not hold its reproduction to be aninfringement."
Plowman, J. continued-
"Let me try to apply that statement to the facts of the presentcase. Mr. Hyde copied 'Three Times Tried'. The result is reflected inhis book in two ways.
edited copying; and (ii) unedited copying.
As regards Mr. Hyde's edited copying, Mr. Eisinger himselfcopied only to the very, limited extent which I have already indicated.Such copying taken by itself, does'not, in my judgment, constitutean infringement of copyright. As regards Mr. Hyde's uneditedcopying, it had no originality and it attracted copyright, as a part ofthe whole book, only by reason of its collocation. When robbed ofthat collocation it does not, in my judgment, represent a substantialpart of the copyright and so does not involve an infringement ofcopyright."
. With the principles enunciated by Plowman, J. in mind, if I may goback to the case of the plaintiff, it would appear that-
The 1 st defendant has adapted the entire Gregg symbols whichthe plaintiff had himself copied from Gregg. They could not forma substantial part of the plaintiff s works, due to their lack oforiginality.
The symbols used by the 1 st defendant which are similar to thesymbols used by the plaintiff are so small in number, that theycannot be said to form a substantial part of the plaintiff's works.
It would then appear that the 1st defendant's book Y1, has notreproduced a substantial part of the plaintiff's works, and therefore,there could not be any infringement of the plaintiff's copyrights.
For these reasons. I would allow the appeal, set aside the judgmentof the learned District Judge and dismiss the plaintiff's action, withcosts below and costs of this court fixed at Rs. 525.
T. D. G. DE ALWIS, J. – I agree
2-WIJESINGHE MAHANAMAHEWA AND ANOTHER v. AUSTIN CANTER