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HIGH COURT OF MADHYA PRADESH
K.L. PANDEY & A.P. SEN, JJ.
Mishra Bandhu Karyalaya (Firm) & others
Vs.
Shivratan Lal Koshal
F.A. No. 83 of 1964
Decided on: 29-4-1969
Under the Copy Right Act, 1957, it appears that under sections 13 and 45, the registration of book with the Registrar of Copyrights, is a condition for acquiring copyright with respect to it. A plain reading of the several provisions of the Act, leaves no doubt in our minds that a copyright in a book now is only secured if it is an original compilation and has been duly registered according to the provisions of the 1951 Act. Once it is so registered, the author is deemed to acquire property rights in the book. The right arising from the registration of the book can be the subject-matter of civil or criminal remedy, so that, without it the author can have no rights nor remedies inspite of the fact that his work is an original work. [Para 9
(2) Copy Right Act, 1914 - Ss. 5 (2) & 5 (3) - copy right - was an inherent right - required no registration.
Under the Imperial Copy Right Act, 1911, as adopted or modified to suit Indian conditions by the Indian Copy Right Act, 1914, a person had an inherent copyright in an original composition or compilation without the necessity of its registration. [Para 10
(3) Copy Right Art, 1914- S.1, Sch. 1 - original work - what is - test for determining - copy right in text book etc.
Neither original thought nor original research is essential for a literary work to be original under section 1, Schedule 1, of the Indian Copy Right Act, 1914. AIR 1924 PC 75 relied on. [Para 11
The real test in adjudging the originality of a work is whether it involved any skill, labour and knowledge of the author and that being fulfiiled, he would be 'protected by law', and no one else was permitted to steal or appropriate to himself the result of his labour, skill and learning.
In text books on arithmetic or dictionaries, almanacs, encyclopedias and guide books, the amount of originality of the author may be small, but the extent of his thought, skill and labour may be tremendous, and it is that which is protected by law. [Para 12
(4) Copy Right – assignment of - distinction with mere licence to publish and sell -construction of agreements.
The real meaning of an agreement rather than the mere choice of words has to be looked into in deciding whether there was a complete or partial assignment of the copy right or a mere licence to print, publish and sell copies of the work in question. LR (1929) AC 151 (HC) relied on. [Para 13
The Court's duty is to give effect to the actual bargain of the parties according to their intention, and when the transaction is in writing, the intention of the parties has to be gathered from the actual words used in the instrument unless they are such as not to convey their intention correctly. [Para 16
(5) Fundamental Rules - R.47, Exception 2 to S. R. 2 - Government servant may write books and assign his copy right.[Para 17
(6) Benami - burden of proof - presumption-person dealing with the ostensible owner and deriving benefit from the contract - is estopped from contending that the owner is benami.
The onus of establishing a transaction to be benami is on the person who asserts it. This cannot be a matter of presumption and has not only to be averred in the pleadings but also must be proved by legal evidence. In absence of evidence, the apparent title prevails. AIR 1965 SC 1364 relied on.
Normally, the proof of a transaction being benami rests not only on direct evidence but also on the relevant circumstances. In absence of any direct proof, the circumstantial evidence may sometimes clinch the issue. The real criterion in cases of benami transactions is to consider the source of funds for the acquisition, motive, possession of property, custody of title - deeds AIR 1949 FC 88 & 11 MIA 28 relied on.
Having dealt with the plaintiff as the owner of copyright and having derived benefits of a contract with him, the defendants are really precluded from contending that the real title resides elsewhere. Such an estoppel necessarily arises by reason of their privity of contract. [Para 18
(7) Copy Right – Copy - what is - use of preceding work how far allowed.
A copy is that which comes so near the original as to suggest the original to the mind of the reader. 34 CWN 540, AIR 1928 Cal. 359 & AIR 1934 Lah. 777 relied on. [Para 30
It is always possible to arrive at the same result from independent sources. The rule appears to be settled that the compiler of a work in which absolute originality is of necessity excluded is entitled, without exposing himself to a charge of conspiracy, to make use of preceding works upon the subject, where he bestows such mental labour upon what he has taken, and subjects it to such revision and correction as to produce an original work. Case-law referred. [Para 31
(8) Contract Act, 1872 - S.39 – repudiation - what is - contract when may be treated as renunciated.
To constitute repudiation of contract it must be shown that the party to the contract made it quite plain his intention not to perform the contract. In cases of this sort, where the question is whether the one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do not amount to an intimation of an intention to abandon and altogether to refuse performance of the contract, and in order to give rise to a right of action immediately on the renunciation, the renunciation must relate at least to so vital a part of the contract as goes to the root of it, It is not, therefore, every breach but breach of an essential term of a contract alone by one party that entitles the other to repudiate the contract, the breach of non-essential terms entitles the other party to damages. AIR 1943 PC 34 relied on. [Para 43
The renunciation of a contract may take place either before its performance is due, or, during the performance of the contract itself. [Para 45
(9) Copy Right Act, 1911 - Ss.6 & 7 - damages under - nature and extent of damages under the sections.
Though the remedies given by section 6 of the Imperial Copyright Act of 1911, are not alternative to those given by section 7, yet when the owner of a copyright obtains damages under section 6, it often happens that he can recover nothing further in respect of damages under section 7. Where the amount of damages awarded under section 6 covers the price of permission to publish the work in question, the author is not entitled to damages also under section 7. (1939) AC 178 relied on.
Thus, damages for infringement under section 6 and damages for conversion under section 7 are cumulative but not alternative, and care must be taken to see that the damages awarded under the respective sections do not overlap. (1936) Ch. 323, AIR 1938 Lah. 173, AIR 1957 Punj. 161 & AIR 1961 Mad. 114 relied on. [Para 49
A.P. Sen, J.- 1. This is an appeal brought by the defendant No.1, M/s Mishrabandhu Karyalaya, Jabalpur and its partners. from the judgment and decree of the 5th Additional District Judge, Jabalpur, dated 31st August 1964, decreeing against them, the plaintiff Sheoratanlal Koshal's claim (A) for recovery of Rs.15,307.04 paise with interest at the rate of 6% per annum thereon from the date of suit, i.e., from 1st January 1963 till realisation, due on account of the arrears of royalty payable to him on the sales effected upto the end of December 1959 of the book entitles 'Saral Middle School Ank Ganit', written by his son-in-law Maniram Vishwakarma, the copy right of which had been assigned to him; (B) for rendition of account of the sales effected by them of the book in question and other allied publications thereof, as per the Hyderabad Syllabus or otherwise, during the years 1960-61-62 and until the date of accounting, so as to ascertain the amount of royalty which had accrued thereon and became payable to him at the rate of 15% of the sale proceeds, (C) for interest at the rate of 6% per annum, on the amount of royalties due each year, payable from 1st January of the following year, (D) for declaring that they do not have any right, title and interest in the book in question, or, in any other publication thereof, as per the Hyderabad Syllabus, and that the plaintiff has the sole right to such publication is; and (E) for perpetually restraining them from printing or publishing the book entitled 'Saral Middle School Ank Ganit', as originally published, or, in any of its revised or amended forms according to the Hyderabad Syllabus or otherwise.
2. The relevant facts giving rise to this appeal, are these. Under Exception 2 to 2 S.R. below Fundamental Rule 47, the Director of Public Instruction, Madhya Pradesh under Memo No. 4257/S dated 9th November 1951 (Ex. P-1), had permitted the aforesaid Maniram Vishwakarma, Assistant Master, Government Multipurpose Higher Secondary School, Jabalpur, (hereinafter referred to be the "author") to undertake the work of writing a textbook on Arithmetic (in four parts) for use in Classes V to VIII, subject to the conditions, namely, that (i) he retained no interest in the sale of copy right, (ii) he disposed of the manuscript in lump sum not exceeding Rs. 1,500, and (iii) his legitimate work did not suffer on that account. In terms of that order the author having written such a book on Arithmetic, effected an outright sale of its copy right in favour of his father-in-law Sheoratanlal Koshal. (hereinafter referred to as the "plaintiff"), in consideration of a payment of Rs. 1,200 for such assignment under the terms of an agreement dated 9th March 1962 (Ex. P-4), executed between them, whereby the plaintiff became the assignee of the copy right having been conveyed all rights therein including rights of its publication, realisation of profits accruing therefrom and the right to royalty on all its sales etc. The defendant No.1 M/s Mishrabandhu Karyalaya, Jabalpur, a firm of printers and publishers, through Basant Kumar Mishra the defendant No.3, a member of that firm who also happened to be in management of it, business alongwith Jagdish Prasad Mishra the defendant No.2, entered into a publishing agreement dated 13th March 1952 (Ex. P-5) with the plaintiff. That agreement granted to the defendants a right to publish the work in question. on the following conditions (i) the right of publication was transferred to them in lieu of their paying to the plaintiff a royalty at the rate of 15% of all there sales, (Clause 1), (ii) an account of royalty had to be made annually, in the month of December each year (Clause 2), and (iii) the plaintiff was entitled to inspect the account of sales of the work in question effected by the defendants, (Clause 3). (iv) the plaintiff had to get the book suitably altered to bring it in conformity with the syllabus in Arithmetic of any other State if prescribed in
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