1989 PLP 2147 (CLC)

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 radio‑diffusion 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 sub‑clauses (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 non‑profit 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 re‑assign 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 `A‑1 to A‑30') 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 paper‑setter. 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 non‑fulfillment, the licence is capable of being revoked. It was further held that writing is essential when there is assignment of copyright.

16. The object behind giving the thumb nail summary of these cases is to highlight the factors the Court has to take into consideration before granting an injunction when infringement of a copyright is alleged. It follows from the above enumeration that copyright can be assigned only by a written agreement. Even though copyright has not been specifically assigned the Court can still draw its inference by looking at the agreement. The mere circumstance that an author has 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 ,f gathered from the agreement. In case the Court comes to a 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. However, copyright 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 clean. The conduct of the Plaintiff would also be one of the relevant factors to be, considered by the Court while granting or refusing an injunction.

17. Turning now to the documents relied upon by Mr. Iqbal Kazi the learned counsel has first referred to a passage from Annexure `C' which is the preface written by the defendant No.2 himself to volume I of the novel `Jangloos' it reads as follows:‑‑ "So, I thought that at least I may see that part of the novel which had already been published in `Subrang', in the form of a book, when the second volume will be published, one will have to wait for the future publications of `Subrang'. It cannot be published before that time. Even for the third volume, readers will have to depend on the performance of Shakeel Adilzadah (Plaintiff). I must clearly state that, the novel will be first published in `Sabrang' and then only it will be published in the form of a book." Annexure `E' which is the next document referred to by Mr. Kazi shows that while giving an interview to one Tahir Masood, the defendant No.2 had admitted the publication of his novel `Jangloos' in Subrang' and acknowledged the receipt of full consideration therefore. This has been further confirmed by the defendant No.2 in the said interview given by him to weekly "Akhbar‑e‑Khawateen" (Annexure `F').

18. It may be pointed out that as far as the first contention of Mr. lqbal Kazi that there is an agreement in writing in the present case, assigning copyright in the said novel to the Plaintiff is concerned, no doubt, section 15 does not require any particular form for such assignment but at the same time the assignment must clearly be spelt out from the writing, which should also be signed by the assignor or his duly authorized agent. The thirty debit vouchers referred to by Mr. lqbal Kazi, no doubt had been signed by the defendant No.2, but nothing can be spelt out there from to indicate that any copyright had been assigned by defendant No.2 to the Plaintiff. No doubt, it clearly appears from the said vouchers that a consideration of Rs.3,000 per each instalment of the story was received by the; defendant No.2 from the Plaintiff but the same is hardly sufficient to render the debit vouchers as documents validly assigning the copyright as visualised by section 15 of the Ordinance. Not only that the assignment of any copyright cannot be spelt out from the debit vouchers, but nothing can be found therein to draw even an inference in this respect. It appears that Mr. Iqbal Kazi was conscious of this flaw in the case, as his argument m the alternative was that, even otherwise since the receipt of consideration for the various instalments published in the Plaintiffs magazine was admitted by the defendant No.2, the Plaintiff, in any case had an exclusive right to the publication of the said story in his magazine and no right could be assigned in respect thereof in favour of the defendants. Support for the contention has mainly been brought from the case reported in AIR 1935 Cal. 508, reference to which has already been made earlier.

19. No doubt, in this case it was held by the High Court of Calcutta that the sale of the first edition of the book to the Plaintiff amounted to an assignment of interest in the copyright until the last copy of that edition was sold but the facts of that case are clearly distinguishable. In that case there was a written agreement between the author of the book and the Plaintiff, which governed the respective rights and obligations of the parties. In the present case, the absence of a written agreement has even been conceded by Mr. lqbal Kazi himself as, all that he has relied upon arc the said debit vouchers, which if I may say again so can neither constitute an agreement nor can they be relied upon as substitutes for the same. However, even in the reported case it was held that the right to exclusively publish the novel could not be further stretched to deprive the defendant of the right to dramatise the novel (see observations on page 509 of the report). In the present case, what can be spelt out from the circumstances enumerated above is that there was an oral agreement between the defendant No.2 and the Plaintiff to publish the said story in the latter's said magazine for which the defendant No.2 had received a consideration of Rs.3,000 for each instalment that was to be published therein. The allegation made by the Plaintiff that there was a further agreement assigning exclusive right in the story to the Plaintiff has been denied the defendants. The defendant No.3 has gone to the extent of alleging that the novel was published by him after obtaining assurance from the Plaintiff that he held no copyright in the story. No affidavit‑in‑rejoinder has been filed by the Plaintiff to rebut the allegations made in the respective counter‑affidavits. Mr. Iqbal Kazi only stated at the Bar that all the adverse allegations made in the counter‑affidavits may be deemed to have been denied by the Plaintiff. However, even if the same is accepted as denial of the allegations contained in the respective counter‑affidavits, the Plaintiff has placed reliance only on the admissions allegedly made by the defendant No.2 in the preface to the said novel and the respective interviews given by him to different magazines. No doubt, the interviews alleged to have been given by the defendant No.2 have not been denied by him in his counter‑affidavit, but notwithstanding the alleged admissions made by the defendant No.2 no agreement as alleged by the plaintiff can be inferred there from. The onus is on the Plaintiff to establish a prima facie case. Such onus has not been discharged as the Plaintiff has failed to establish a clear title in the copyright which under such circumstances would be presumed to vest in the p defendant No.2. On the other hand, it has been pointed out that the defendant 1 No.l has acquired rights from the defendant No.2 to telecast the play based on the novel `Jangloos' and has already made commitments with its various sponsors I to televise 32 episodes thereof. According to the defendant No.l advance recordings in normal course of as many as thirteen episodes of the play have so far been completed as pointed out earlier. Consequently according to the defendant No.l, the grant of injunction in favour of the Plaintiff would result into a very heavy financial loss to the defendant in view of the aforesaid commitments already made by it with the sponsors. The interest of television viewers is also to be taken into consideration as a number of episodes has already been telecast. Mr.A.A. Shareef, learned counsel for the defendant No.l has further contended that telecast of `Jangloos' has been receiving publicity since 1983, but no notice thereof was taken by the Plaintiff. Moreover, according to the learned counsel, it was after about three years of the publication of the first. part of the said novel that the defendant No.2 as author thereof entered into an agreement with the defendant No.l for the purpose of script writing with a view to its being telecast by the defendant No.l. As far as the said contentions arc concerned, no doubt the Plaintiff's case is based on a fresh cause of action but when there is no written agreement the Court can always draw its inferences from the attending ,E circumstances and the conduct of the plaintiff would, therefore, be relevant‑Absence of a written agreement is also a factor, hard to overlook because such transactions are normally governed by a written documents. In any case, since the Plaintiff has failed to establish that there was even an oral agreement between him and the defendant No.2 as alleged by him, giving exclusive rights in respect of the story, `Jangloos' to the Plaintiff, the latter has failed to establish a prima facie case for granting of injunction in his favour.

20. Mr. Izhar Haider Aizvi, learned counsel for the defendant No.2 has also raised certain legal objections. The first relating to the jurisdiction of this Court to try the present suit has been raised by a separate application filed under Order VII, Rule 11, C.P.C. My attention in this respect was particularly invited to section 65 of the Act, which vests the jurisdiction for filing suits or other civil proceedings regarding infringement of a copyright in the District Court. The contention, therefore, was that this Court cannot try the present suit. Mr. Iqbal Kazi, without going into the details of the history of vesting this Court with jurisdiction on the original civil side, has referred to section 2 of the Sind Civil Courts (Amendment) Ordinance, 1981, which substitutes a new section 7 for the original one as follows:‑‑

7. Original jurisdiction of the Court of District Judge Subject to any law for the time being in force, the original jurisdiction of the Court of the District Judge in Civil Suits and proceedings shall without limit of the value thereof excepting in the Karachi District where the original jurisdiction in civil suits and proceedings of the value exceeding one lac of rupees shall be exercised by the High Court." Since the present suit has been valued for the purpose of court‑fees and jurisdiction at Rs.1,01,000 the contention of Mr.Iqbal Kazi was that this Court has jurisdiction to try the suit. However, since a separate application has been made in this respect, and in view of the observations made by me here in above, it is not necessary for me to go into the question of jurisdiction at this stage of the case. I would leave this question to be decided subsequently. The said application made on behalf of defendant No.2 may be registered and numbered by the office and put up for orders before the Court.

21. An objection was also raised by Mr. Izhar Haider Rizvi in regard to limitation, which was based on the provisions contained in section 14 to which I have already referred in this order. However, it may be observed once again that it is not necessary for me to go into the question in view of the aforesaid observations.

22. In the result, no case for grant of interim injunction against the defendants has been made out and this application is dismissed. M.B.A/S‑485/K Application dismissed.