1989 C L C 2447
[ Karachi]
Before Mamoon Kazi, J
SHAKEEL ADILZADAHPlaintiff
versus
PAKISTAN TELEVISION CORPORATION Ltd. and 2 othersDefendants
Civil Suit No. 9.17 of 1989, decided on 28th September, 1989.
(a) Copyright Ordinance (XXXIV of 1962)
Ss. 13, 14 & 15Summary of the provisions.
(b) Copyright Ordinance (XXXIV of 1962)
Ss. 13, 14 & 15Copyright can be assigned only by a written agreementWhere copyright had not been specifically assigned, the Court can still draw its inference by looking at the agreementMere circumstance that an author had been engaged by a Publisher to write a book for remuneration would itself not vest the copyright in the Publisher unless such an intention can be clearly gathered from the agreementWhen Court comes to the conclusion that the author has only given a licence to the Publisher to publish the work, it will have to look into the agreement to determine the conditions on which the same was given to the publisher.
(c) Civil Procedure Code (V of 1908)
OXXXIX, Rr.l & 2Copyright Ordinance (XXXIV of 1962), Ss. 13, 14 & 15Temporary injunction, grant ofCopyrightAllegation of infringementCopyright cannot be presumed and when action is brought before the Court by the plaintiff to prevent infringement of Copyright the Court would grant an injunction only when the right claimed by the plaintiff is cleanConduct of plaintiff would also be one of the relevant factors to be considered by the Court while granting or refusing an injunctionOnus on the plaintiff to establish a prima facie case and clear title in the copyright having not been discharged by him, grant of injunction was refused.
Sri Mangal and Co. v. Books (India) Pvt. Ltd. and others AIR 1973 Mad. 49; Khemral Shrikrishandass v. Messrs Garg & Co. AIR 1975 Delhi 130; G.G. Harrap Co. Ltd. v. Harbanslal Kalra AIR 1935 Lah. 282; Kamala Book Depot Ltd. v. Sourendrenath Mukharji AIR 1935 Cal. 508; Lowudes v. Duncombe 47 ER 1134; Sanders v. Smith 40 ER 1100; Lewis v. Champman 49 ER 52; Andrew Sportisweeds v. William Mark Clark 47 ER 844; Edwards v. Cotton (1903) 19 TIR 34 and Messrs Mishra Bandhu Karvalave v. Shivratanlal Koshal AIR 1979 Madh. Pra. 261 ref
(d) Copyright Ordinance (XXXIV of 1962)—
S.15Assignment of copyrightNo particular form for such assignment is required but the assignment must clearly be spelt out from the wording, which should also be signed by the assignor or his duly authorised agentDebit vouchers with Publisher duly signed by the author not spelling out any assignment would not indicate that any copyright had been assigned by the author.
Kamala Book Depot Ltd. v. Sourendrenath Mukharji AIR 1935 Cal. 508 distinguished.
Iqbal Kazi for Plaintiff.
A.A. Shareef for Defendant No.l.
S. Izhar Haider Rizvi for Defendant No.2.
Mobarak Ahmed for Defendant No.3.
ORDER
The plaintiff, by an interim injunction, seeks to restrain the defendants from publishing, telecasting, producing, filming, marketing, exhibiting, selling, assigning or dealing with novel `JANGLOOS' a literary work produced by the defendant No.2.
2. The facts of the case, as alleged in the Plaint are that in 1977 the defendant No.2, who is a wellknown novelist, had agreed to write in series a novel titled `JANGLOOS' for the plaintiff's magazine published in Urdu language, known as `Subrang'. It was agreed between the plaintiff and the defendant No.2 that for each instalment of the said novel, the defendant would be paid a total consideration of Rs.3,000 which shall amount to a sale and assignment of that part to the plaintiff thereby constituting the plaintiff as the holder of copyright therein. It was further agreed between the parties that the said story would not be published in any other magazine or by way of a novel nor the story would be given to any film producer for making a film or to Pakistan Television Corporation for telecasting the same thus assigning the entire copyright to the Plaintiff.
3. Pursuant to the agreement the defendant No.2 submitted in all 42 instalments of the said story to the Plaintiff out of which 281/2 instalments were published in the said magazine of the plaintiff. The total consideration received by the defendant No.2 from the plaintiff for the assignment of the said rights in the 42 instalments was Rs.1,26,000 for which receipts were duly issued by the defendant No.2, copies of which have been filed with the plaint as Annexures `A1' to A30'.
4. However, to a great surprise of the plaintiff, the defendant No.2 got the first volume of novel `Jangloos' published in November, 1986, through the defendant No.3. The Plaintiff protested about the same, but the defendant No.2 assured the plaintiff that till the entire series of `Jangloos' were published in `Subrang' he would not publish any other part of the said story nor give the same for filmmaking or telecasting. However, on 191989 the Plaintiff came across a copy of the second volume of `Jangloos' published by the defendant No.3, which was m violation of the said rights of the Plaintiff resulting in loss to him.
5. The Plaintiff also came to know that the story of `Jangloos' was being televised. The Plaintiff, thereafter, approached the defendant No.2 and tried to convince him that it would be absolutely wrong for him to televise the novel without permission of the plaintiff particularly when the defendant No.2 had received full consideration for the novel from the plaintiff, however ,the defendant No.2 failed to settle the matter.
6. Thereafter, the Plaintiff was constrained to send an Advocate's notice, dated 2481989 to the defendant No.l, but the defendant failed to respond to the said notice, although a reply was received from the defendant No.2 denying that any right or interest in the novel `Jangloos' had been assigned to the Plaintiff, and hence the suit.
7. The said allegations have been denied by the defendants in the respective counteraffidavits filed on their behalf. According to the defendant No.2, no right in the said novel or story had been assigned by the defendant to the Plaintiff, nor had the defendant agreed that the story would not be published or telecast as alleged by the Plaintiff. Although the receipt of the amount of Rs.1,26,000 by the defendant No.2 from the Plaintiff has not been denied, but the same, according to the defendant, had not been paid to him as consideration for the said story but only as, a nazrana. However ,the Publication of 281/2 instalments of the story in the said magazine of the plaintiff with permission of the defendant No.2 has not been denied.
8. According to the defendant No.l it was as far back as in 1983 that the said defendant under an agreement with defendant No.2 took steps to telecast 'Jangloos'. Pursuant to the said agreement, the defendant No.l in 1983 had started production for the purpose of transmission and telecast of 'Jangloos' as a drama serial and the fact that the defendant No.l was working on script of a pilot programme for telecasting the said serial under an agreement with the defendant No.2 had received a wide publicity in the national press throughout the length .and breadth of the country, but neither the plaintiff himself nor anybody claiming on his behalf questioned the same in any manner, or claimed to have any copyright in respect of the story. However, the drama could not be telecast and the project on account of unavoidable reasons was temporarily shelved. According to the defendant No.1 four episodes of drama serial of 'Jangloos' have already been telecast out of the 32 scheduled to be telecast. Once again the proposed telecast of the drama serial received wide publicity through the national press in April/May, 1989. The defendant No.l, has already made commitments to eight various sponsors for televising the 32 episodes of the said serial and advance recording of 13 episodes in normal course has already been completed. Consequently, according to the defendant No.1 the issuance of injunction in favour of the defendant (sic.).
9. The case of the defendant No.3 is also not different from that of the other defendants. According to the defendant, before the publication of the novel, 'Jangloos' in February, 1987, the defendant inquired from the Plaintiff whether the copyright of the novel had been assigned to him by its author the defendant No.2, but the Plaintiff confirmed that no such copyright had been obtained by him from the author of the said novel. According to the defendant No.3, the novel was published by him after obtaining such assurance from the plaintiff. The silence of the plaintiff for nearly three years after the publication of the first edition of the novel, therefore, according to the defendant No.3, clearly militates against his bona fides.
10. 1 have heard Mr. Iqbal Kazi, learned counsel for the Plaintiff and Mr.A.A. Shareef, Mr.lzhar Haider Rizvi and Mr. Mubarak Ahmad, learned counsel for the defendants Nos. 1, 2 and 3 respectively.
11. Although many issues have been raised by the learned counsel, but I would like to deal with the basic issues first, viz. whether the Plaintiff has any copy right in the story/novel 'Jangloos' and/or whether there was any agreement between the Plaintiff and the defendant No.2, giving exclusive rights in respect of the said story to the Plaintiff. If any of these questions is answered in the affirmative, then there will be no difficulty in determining whether the defendants have infringed the Plaintiffs rights in the said story.
12. The Copyright Ordinance, 1962 (hereinafter referred to as the 'Ordinance') which governs all matters relating to copyright in Pakistan came into force on 27th February, 1987. "Copyright" is defined by section 3 of the Ordinance and copyright in the case of literary, dramatic or musical work has been defined by clause (a) thereof as follows:
"3. Meaning of Copyright.(1) For the purpose of this Ordinance,
Copyright" means the exclusive right, by virtue of, and subject to, the provisions of this Ordinance
(a) in the case of 'a literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely:
(i) to reproduce the work in any material form;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to produce, reproduce, perform or publish any translation of the work;
(v) to use the work in a cinematographic work or make a record in respect of the work;
(vi) to communicate the work by radiodiffusion or to communicate to the public by a loudspeaker or any other similar instrument the radio diffusion of the work;
(vii) to make any adaptation of the work;
(viii) to do in relation to translation or an adaptation of the work any of the acts specified in relation to the work in subclauses (i) to (vi)." Section 13 of the Ordinance provides that "the author of a work shall be the first owner of the copyright therein. Proviso (a) to Section 13 further provides that: "in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspapers, magazine or similar periodical under a contract of service or apprentice ship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the' copyright in the work in so far as the copyright relates to the publication of the , work in any newspaper, magazine or similar periodical or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall e the first owner of the copyright in the work. Proviso (c), which is also relevant provides that "in the case of work made in the course of the author's employment under a contract of service or apprenticeship to which Clause (a) or Clause (b) does not apply, the employer shall, m the absence of any agreement to the contrary be the first owner of the copyright therein". Section 14 of the ;A Ordinance further provides that "The owner of the copyright in an existing work of the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to i limitations or either for the whole term of the copyright or any part thereof'. j Section 14 is subject to two provisos and according to the first one, in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. The second proviso fixes a period of assignment and according to it, the same shall not be for a period of more than 10 years beginning from the calendar year next following the year in which the assignment is made. However, an exception has been made in respect of cases where the assignment is made in favour of Government or educational, charitable, religious or nonprofit institution. The proviso further provides that if an assignment of copyright in a work is made in contravention of this proviso, the copyright in the work shall, on the expiry of the period specified in this proviso, revert to the author, who may reassign the copyright in the work subject to the provisions of the Ordinance. Section 15 of the Ordinance, which is most important for the purpose of the present controversy provides as follows:
"15. Mode of assignment.No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent."
13. Referring to the provisions of the Ordinance referred to hereinabove, Mr. Iqbal Kazi has vehemently argued that the entire copyright in the said book had stood assigned by the defendant No.2 to the Plaintiff for which a substantial . consideration of Rs.3,000 per month for each instalment had been received by the latter. Although it has been very candidly conceded by the learned counsel that there was no formal agreement between the defendant No.2 and the Plaintiff giving exclusive rights in the said story to the Plaintiff, but according to the learned counsel, the thirty debit vouchers (Annexures `A1 to A30') which were admittedly signed by the defendant No.2 acknowledging the receipt of Rs.3,000 for each instalment of the story from the Plaintiff, constituted different agreements in writing to meet the requirements of section 15 of the Ordinance as no particular form for the agreement is visualised by section 15, the only requirement being that the agreement should be in writing and assigned by the assignor or by his duly authorised agent. The learned counsel has also referred to various other documents, copies of which have been filed with the Plaint as Annexures `C, D, E and F which according to him, supported his contention. Reliance has been placed by the learned counsel on Sri Mangal & Co. v. Books (India) Pvt. Ltd. and others AIR 1973 Mad. 49; Khemral Shrikrishnadass v. M/s. Garg & Co. AIR 1975 Delhi 130; G.G. Harrao & Co. Ltd. v. Harbanslal Kalra AIR 1935 Lah: 282 and Kamala Book Depot Ltd. v. Sourendrenath Mukharji AIR 1935 Cal. 508.
14. In the case reported in AIR 1973 Mad. 49, their Lordships of the Madras High Court
while interpreting similar provisions of the Indian Copyright Act as are contained in section 15 of the Ordinance, held that no particular form of assignment of any copyright in any work is required and it will suffice if the assignment can be culled out in writing from some document and that the assignment has been authorised by the author is evident from his signature or that of his authorised agent. In the case reported in AIR 1975 Delhi 130; it was held that where work is done by an author for a consideration for a publisher the copyright would normally vest in the publisher subject to any contract to the contrary as provided in sections 17 and 18 of the Copyright Ordinance, 1957 (enforceable m India). However, in 1968 Kar. L J 440 it was held that the mere circumstance that the author had been engaged by a publisher to write a book for a fixed remuneration does not warrant any legal presumption that the intention of the parties was that the copyright should belong to the publisher. In the third case, cited by Mr. Iqbal Kazi and reported in A.I.R..1935 Lah. 282; it was held that where a person publishes a book, containing selections from another book, there is a prima facie case to issue a temporary injunction. In AIR 1935 Cal. 508 the author sold to the publisher the first edition of his new novel, consisting of 1,100 copies in twelve forms in double crown size. Thereafter, the author arranged with another publisher to publish the same novel as part of a collection of his novels. The only contested point before the Court was the legal effect of the first agreement. The Plaintiff claimed that the collection subsequently published was infringement of his rights and the author could not publish the novel in any form at all until the whole of the first edition was sold. The defendant contended that the author only sold a right to print and sale 1,100 copies in a particular form and did not assign the copy right and that the author was entitled to publish the novel alone or in a collection provided that he did not publish it in twelve forms in double crown size. It was held that the sale of the first edition amounted to an interest in the copyright until the last copy of that edition was sold. Until then the purchaser had an exclusive right of copyright, at any rate, as far as the right to publish the novel in any form is concerned, and that the defendant's action amounted to an infringement of the plaintiffs' right.
15. Mr. AA. Shareef, learned counsel for the defendant No.l, on the other hand, has invited my attention to the following decisions. In Lowudes v. Duncombe 47 E.R. 1134, it was held that the Court will not grant an injunction against a literary piracy unless the title be clear. In Sanders v.Smith 40 E.R. 1100 injunction was refused to restrain an alleged infringement of copyright where the conduct of the Plaintiff, in the opinion of the Court, was calculated to induce the defendant to believe that the course taken by them would not be objected to by the Plaintiffs. Similar considerations weighed with the Court while declining injunction in Lewis v. Champman 49 E.R.52. In Andrew Sportisweede v. Willisam Mark Clark 47 E.R. 844, it was held that the Court should take into consideration in granting or withholding the injunction on which side the balance of harm will preponderate. In Edwards v. Cotton (1903) 19 T.I.R. 34 it was held that the agreement with the publisher, giving the publisher the exclusive right of printing and publishing the excise and issuing the same in volume fofrm was a publishing agreement only and not an assignment of the copyright. In Agarwala Publishing House Khurja v. Board of High School and Intermediate Education U.P. Allahabad AIR 1977 All. 9 it was held that copyright in respect of examination question papers in absence of assignment under Section 18 (of the Indian Copyright Act) or contract giving up the claim of the copyright, would belong to the papersetter. In another case reported as M/s. Mishra Bandhu Karvalave v. Shivratanlal Koshal AIR 1979 Madh. Para. 261 it was observed that in the case of a publishing agreement between author and publisher, the most important pint to determine is whether any copyright is to be vested in the publisher or whether a licence only is intended. In the former case, the publisher will enjoy the full legal title to the copyright and will alone be entitled to enforce the right against third parties. In the case of a licence, which in a publishing agreement will normally be an exclusive licence, the grant is subject to certain conditions and on their nonfulfillment, the licence is capable of being revoked. It was further held that writing is essential when there is assignment of copyright.