"When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases and any attempt to vary the disposition he has made of it appears to be an invasion of that right." Chinnappa Reddy,J. through this observation in Gramophone Co. v. Birender Bahadur Pandey (AIR 1984 SC 667) has encapsulated the essence of copyright law. Copyright infringement cases have traversed into many an area of the entire gamut of Copyright law. This debate has extended to privileged confidential information gathered in the process of providing legal services. The situation becomes even more sensitive when legal professionals clash on grounds of ownership of such information. Furthermore, an individual's standing in the firm brings in precariousness in the state of affairs.

As the vouch for the top amongst legal professionals rises, relationships amongst them seem to have become more strained and complex than ever. With extensive information and data on hold with professionals, it seems that legalities have found a place for themselves in professionalism. In this regard, Diljeet Titus, Adv. & Ors. v. Alfred A. Adebare & Ors. 2006(32) PTC 609 throws light on the mélange of rights and strained professional relationships.

The present suit deals with bitterness arising amongst legal personnel. Diljeet Titus, the plaintiff and Alfred A. Adebare, one of the opposing parties to the suit were associates in the firm M/s Titus & Co. The Plaintiff has been in practice since 1989 and set up M/s Titus & Co., as a sole proprietorship firm in 1997. Prior to his own venture, he was part of M/s Singhania & Co., along with two of the four members of the opposition to the suit. They left the concern collectively, when the Plaintiff setup M/s Titus & Co.

While the Plaintiff claimed that the Defendant was an employee, working for remuneration, the same was denied on the grounds that the nature of work was more on the lines of partnership. Their parting being on unpleasant terms, was accompanied by the Defendant's taking away privileged information of the law firm, use of which by anyone but the Plaintiff, could make him liable to his clients. In this regard, they filed an injunction suit apart from criminal complaints, grieving infringement of copyright. Interim injunctions were claimed too, in the event of continuing existence of the data with the Defendant.

In response, the Defendant and his co-respondents claimed that they were the rightful owners of the copyright in what they had created. In their contention, the creation was independent, based on the advice and counseling rendered to the clients and was stored in the Plaintiff's computer system. In this regard the four co-respondents, namely, Ms. Seema Ahluwalia Jhingan, Mr. Alishan Naqvi, Mr. Dimpy Mohanty and the Defendant sought a decree of declaration, stating that they owned the copyrights and hence had rightly obtained a permanent injunction restraining the Plaintiff and his firm from using and parting with the same.

The issue in contention revolves around the right to the creation, as being exclusive to either of the parties or as a joint right possessed by both of them. The counsel appearing on behalf of the Plaintiff, and establishing his contentions on the rationale behind copyrights – 'Thou shalt not steal', emphasized that there existed an implicit confidentiality amongst advocates, which had been breached. The nature of information taken away was stated to have a two-fold nature viz, a list of clients and law firms, and opinions and advice rendered, by which the Plaintiff himself was bound in terms of confidentiality.

The plaintiff's counsel, referring to the inevitable injury caused to a senior associate on the leaving of a junior, referred to the principles of 'damnum sine injuria'. His submissions referred to the nature of relationships amongst associates, and contended that the mode or nature of payment was ineffectual so long as the nature of dealing could be interpreted from various antecedent factors.

The defendant is a Nigerian national, and does not possess authorization or license to practice law in India. The plaint brings to the fore, that the four personnel including the Defendant were full time employees of M/s Titus & Co. All billings were made in the name of the Plaintiff. The Defendant and his colleagues worked under the regime and discipline, outlined by the Plaintiff, filling daily time sheets and fulfilling other formalities, acquiring performance linked remuneration. Associates at M/s Titus & Co. provided their professional services to the Plaintiff, and had no separate clientele or had not represented any of the Plaintiff’ clients independently. Work was assigned at the discretion of the Plaintiff, and productivity dependent on the number of billable hours on a client’s particular matter. The Plaintiff further claimed that under his guidance, expertise, direction and supervision did the associates work and using his knowledge, skill, resources and investment, crucial and confidential electronic records and documents had been created containing indispensable information.

All the members quit M/s Titus & Co. in March 2004 except for Mr. Naqvi, who left in November 2003. They set up their own law firm, to which the Plaintiff had no grievance. He alleged the Defendant to have visited the office, after working hours, on the pretext of want of information to be downloaded, with respect to a particular project assigned. The Defendant used a CD-Writer, to connect to the Plaintiff’s terminal and hence the Local Area Network, in order to enable the 7.2 GB data to be copied and emailed the same using the Internet access available on the Plaintiff’ terminal. He is also alleged to have stolen a hard copy of precedents comprising over 10 proprietary drafts. Amongst other things, licensed CDs of foreign judgments, precedents, conveyances and forms, licensed in the name of the Plaintiff, were alleged to have been taken away, apart from about 3,000 visiting cards, belonging to the firm were allegedly taken away. This resulted in the Plaintiff filing a criminal complaint, on the account of not refraining from doing so, in spite of prior requests.

In pursuance of the complaint made, the Defendant’s residence-cum-office was raided, where in four computers were found. Delhi Police took possession of the hard disk, making copies of which, they returned them to the Defendant and retained a copy to facilitate investigation. The Defendant admitted to have in their possession all the documents stated, but defended themselves on the grounds of having created them.

The documents are slated to be governed strictly by the norms of client-attorney privilege. The Plaintiff asserted that his associates and advocates were not permitted to disclose confidential client related documents especially in regard of the Bar Council of India Rules. Referring to Section 49(1)(c) of The Advocates Act, 1961, Rule 17 in Section II and Section 126 of the Evidence Act, it was stated that the documents were generated to render services to clients, and hence the Plaintiff being solely entitled to be in possession of the same. He was considered bound by a duty to maintain confidentiality of his clients, and the Defendant and others had committed a breach in this regard.

The major defence, set out as a written statement, contended that both the parties were at par with each other while in the firm and that the Plaintiff, in spite of being the Sole Proprietor held no special position. It was propounded that anyone could not be appointed to render services to the client, nor could the Plaintiff alone do so. The arrangement was stated to be a camouflage, right from its inception. The firm consisted of a group of lawyers, consultants, and professionals christened as M/s Titus & Co. only for convenience sake. They were all stated to be exercising their skills and knowledge independently and were given the discretion to advice and render services, without any supervision. They were not bound by pre-determined timings. Timesheets were to be filled to enable billing, and remuneration/salary depended on payments received. Defendant contends to have raised bills independently in his name.

The Plaintiff claimed that a contract of service of working existed under the direction, supervision and control of the plaintiff, as followed normally in the legal profession. To this the Defendant reverted, claiming to be on an equal footing with the Plaintiff.

Referring to the Copyright Act, 1957, the Plaintiff contended that the Defendant and his associates were unable to show that they worked independently on any document; no claim was made towards infrastructure and other assets on parting with M/s Titus & Co. Further, the information misused was also said to include advice of a confidential nature and documents were placed on record to substantiate their plea. A petition under Section 482, Cr.P.C. filed by the Defendant and the others was also made reference to. Herein, they admitted disassociating themselves from the Plaintiff’s firm. The billing system was also referred to, apart from the status report filed by the ACP, showing that the documents on the hard disk were similar to those held on the Plaintiff’s hard disk. The investigations made revealed offences under Sections 381/385/386of the IPC and Section 66 of the IT Act to have been committed. Amongst others, a TDS certificate was also presented to exhibit that payments were made for the services rendered to the Plaintiff. The counsel for the Plaintiff though could not negate the fact that certain information could be retained in the memory of an advocate parting ways and stated it to be a corollary to such separation. This, in his submission though did not include deliberate copying or transmission of data.

In reference to the Apex Court judgment rendered in Mr. S.D. Gupta v. M/s Dasuram Murzamull AIR 1973 SC 48, the counsel for the plaintiff contended that no material was placed on record to determine partnership. The Court viewed that in the absence of a written partnership contract along with records exhibiting terms and conditions, tax receipts and billings showing it to be a proprietorship concern of the Plaintiff, a claim to the same effect could not be made. Applying the decision spelt out in Ram Singh & Others v. U.T. of Chandigarh 2004(1)SCC 126, the Counsel submitted that the Plaintiff, Defendant and his colleagues could not be considered independent of each other. In accordance with Section 17 (c) of the Copyright Act, a work made in the course of other’s employment under a contract of service, it is the employer who is the first owner of the copyright. Further, the norm laid down in Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Anr 1995 (15) PTC278 (Del) was also brought to the notice of the court.

Taking into consideration, the principles laid down in the texts, it was concluded that a compilation of addresses developed by devoting time, money, labour and skill was a piece of ‘literary work’ and that was eligible to be copyright protected. The court on comparing the database supplied by the Plaintiff and that retrieved from the Defendant and his associates found obvious similarities in a substantial number of entries. An interim order was passed against the use of these by the Defendant. This similarity was left unchallenged and instead they claimed equal rights to the same.

Making references to leading international decisions such as Robb v. Green 1895 2QB 1, Universal Thermosensors Ltd V. Hibben & Others 1992 3 All England Law Reports 257, and a catena of others, the counsel for the Plaintiff, emphasized on various aspects in relation to a contract of service. He focused on the existence of an implied term of not using the accessible information to cause detriment, duty of a servant with regard to confidential information, the four fold test of control, ownership of tool, chance of profit and risk of loss and other associated concepts. Stating the course of action undertaken by the Defendant and the others to amount to a breach of contract, the same was supported vide the judgments rendered in Coco v. A.N. Clark (Engineers) Ltd 1969 RPC 41, Llandundo Urban Council v. Woods 1895-9All India Law reports 895 and Seager v. Copydex Ltd 1967 2 All England Law Reports 415.

Refuting to these allegations and arguments, counsel for the Defendant stated that the issue of contention was primarily to whom the copyright rightfully belonged. They contended that the offence of Copyright infringement could not be alleged solely on the basis of an assumption and that the documents involved must have been produced. They stated that the Plaintiff had failed to do so and instead only a list of the same had been submitted. Referring to the provisions under Section 17 of the Copyright Act, they contended that the author was the first owner, laying emphasis on its definition as in Section 2(d). Making an in-depth analysis of Section 17, proviso (a) was stated to hold good only with respect to newspapers or periodical publications. Clause (c) of the same was availed of instead, wherein an employer-employee relationship had to be proved, in regard to which no documents had been submitted to enunciate their relationship.

Averments made in the plaint were conceded to and they stated that while on one hand authorship to the documents was being claimed, it stated that these were prepared “with associates”. This sort of a relationship was held to be unacceptable as under the Bar Council of India Rules, Section VII, rules 47 and 49. Making a reference to Rule 49 it was contended that the existence of an employer-employee relationship was impossible as far as the legal profession was concerned and that no advocate could be anybody’s full-time salaried employee. Considering the past professional relationship that existed amongst the parties to the suit, it was held that the averments were insufficient in order to determine their relationship and that a contract enabling the same should have been signed. Furthermore, the Defendant had been referred to as an associate and a consultant on two different occasions, while Ms. Ahluwalia as a partner at a certain event. A publication in the Asia Law too described the firm to consist of five partners and nine associates. The Court held this issue to be unimportant, considering that it was not a suit where a third party had alleged misrepresentation. Moreover, such a representation as suggested, was held to be perhaps in an attempt to advance the firm’s business. The remuneration being in terms of profitability was pleaded to suggest that an employer-employee relationship was non-existent.

The Counsel for the Defendant argued further on the grounds of confidentiality. They stated that this aspect could not be an issue since they held the copyright. In the absence of a ‘master-servant’ relationship, the apprehensions held by the Plaintiff were said to be misconceived notions, and that the attorney-client privilege was enjoyed by all lawyers. Asserting that the documents prepared were pieces of original literary work. In such a scenario, Section 17 (c) was held to be inapplicable. Referring to the case of V.T. Thomas v. Malayala Manorama AIR 1989 Kerala 49, it was held that an employer had a statutory recognized copyright in the productions made in the course of the copyright.

To bring out the nature of legal profession and the services, State of U.P. v. State Law Officers Association & Ors. AIR 1994 SC 1654 was taken note of, dealing with the termination of engagement of law officers appointed by the State Government. The present suit was held to be quite different from that and held that the nature of a legal relationship was quite different from a simple client-advocate relation. Making a reference to other previously decided cases, it was inferred that the sole criteria for determining a complex relationship as in the present case could not be a simple client-advocate relation.

The contention of a database being an original literary work was not questioned in the light of Section 2(o) of the Copyright Act. Further, with reference to Section 17(c) of the Act, it was stated that the work done by the defendants for the clients of the plaintiff would fall in the definition of contract of service. It was further stated that irrespective of this, a breach of trust or confidence had been committed, which could not be ignored in view of Section 16 of the Copyright Act.

Discussing the change in the nature of relationship as associates and partners, the Court held that the plaintiff had clearly established a prima facie case in respect of the rights in the material taken away by the defendants. It was held that the defendants were not entitled to utilize the agreements, diligence reports, list of clients and other material, which they used or learnt of in course of their relationship with the plaintiff, rendering them to be confidential per se. In this view, the defendants were restrained from using the documents, client lists etc. for their own benefit.

It seems that in the times to come, the instant case shall be a standpoint in terms of how relationships in the legal industry be determined. While complexity and competition is on the steady rise, confusion needs to be watched out for.