Commercial High Court in landmark judgment on law of copyright in respect of derivative works

By the Judgment delivered on 4 November 2016, the learned judge of the Commercial High Court of Colombo has entered Judgement declaring that Lionel Halwathura, Kamala Halwathura and Ashoka Perera (the Plaintiffs) are the owners of copyright in derivative works of the ‘Science and Technology Textbook for Grade 7’. 

By the said Judgment it was further declared that Mr. Sirisumana Godage (the Defendant) is not entitled to print and/or supply any copies of the said book and the Plaintiffs are entitled to recover from the Defendant a sum of Rs. 2,046,721 as damages for infringing the Plaintiffs’ copyright in derivative works of the ‘Science And Technology Textbook For Grade 7’. 

This landmark Judgement was delivered after a heavily fought battle in the Commercial High Court of Colombo, which was instituted in 2006 and continued up to 2016 with several Counsels and President’s Counsels appearing for the both Parties.  

Before this case was instituted by the Plaintiffs, the Defendant had submitted a Tender for the procurement of the ‘Science and Technology Textbook for Grade 7’ under the second General Education Project (GEP2) by the Government of Sri Lanka. However, owing to the reason that the said book had not met the required standards of the said Ministry of Education, the Ministry had informed the Defendant to re-edit the said book to meet the standards required thereof. Pursuant thereto, the Defendant had requested Mrs. Kamala Halwathura to edit the said book to meet the standards required by the Ministry.

Kamala Halwathura having accepted the said request made by the Defendant, proceeded to edit the said book with the assistance of Lionel Halwathura and Ashoka Perera. However, owing to the impossibility to improve the said book to the required standard of the Ministry of Education, the Plaintiffs at the request of the Defendant proceeded to write a ‘Science and Technology Textbook for Grade 7’ anew in conformity with the syllabus approved by the Ministry of Education. 

In or around 2005, Sirisumana Godage, (the owner of S. Godage Publishers) had printed and supplied 285,751 copies of the said book in Sinhala, Tamil and English languages to the Ministry of Education and thus, had earned an exorbitant sum amounting to a sum of Rs. 64 million. Furthermore, additional 10,370 copies of the said book printed in Tamil language were purchased by the Ministry of Education in 2006. Thus, the said book has been used by all the Government schools in Sri Lanka as the official handbook for the Grade 7 Subject ‘Science and Technology’. In 2006, the Plaintiffs filed a case against Sirisumana Godage for infringing their copyright in derivative works of the said book. 

The Plaintiffs were represented in Court by President’s Counsel Dr. Harsha Cabral who appeared with Kushan Illangathilke, Attorneys at Law on the instructions of V.W Kularatne Associates.

The Plaintiffs maintained that the Plaintiffs are the copyright owners of the original contributions made to the said book. Thus, the Defendant has infringed the copyright of the Plaintiffs in derivative works of the said book.

The Defendant’s position had been that the Plaintiffs were merely editing the said book, which was the work of the previous authors. Thus, the Defendant had argued that the Plaintiffs only edited the said book on the request of the Defendant and thus, Plaintiffs’ work cannot be copyright protected.

On 4 November 2016, pursuant to the careful consideration of all relevant facts and legal submissions made by both parties, Ruwan Fernando, Judge of the Commercial High Court of Colombo entered Judgment in favour of the Plaintiffs.

In delivering the Judgement in favour of the Plaintiffs, Hon. Ruwan Fernando took into consideration that the Plaintiffs had engaged in a creation of a new ‘Science and Technology Textbook for Year 7’ upon informing the Defendant that it was impossible to edit the previous version of the book and taking into special consideration that despite the book being a pre-existing work, the Plaintiffs have the copyright in the original derivative work created thereafter.  

The Court also took into account that the Defendant including the names of two of the Plaintiffs who were school teachers on the front cover of the said book also gave the inference that their contribution to the work was more than a mere editing process. Thus, the Defendant has clearly failed to rebut the presumption that the physical person whose name is indicated as the author of a work in the usual manner is the author thereof. 

This case which was initiated in 2006 in respect of the copyright of the said book continued for more than for 10 years and has now concluded with the Judgement dated 4 November 2016.