P L D 1967 Karachi 168 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑The plaintiff respondents claim to be the owners by assignment of the copyright of the musical works, namely, "these foolish things" (by Holt Marvell), and "Portrait of my Love" (by Cyril Ornadel). The respondents‑plaintiffs brought an action against the defendants‑petitioners alleging that by a band performance given on the premises of Metropole Hotel the petitioners had infringed their copyrights in the musical works. They prayed for an injunction restraining them from infringement and also claimed damages. The petitioners resisted the suit and inter alia took a preliminary objection that the suit was not maintainable under the Copyright Act on the ground that the musical works related to foreign country. The learned District Judge decided all the preliminary objections against the defend ants‑petitioners. They in their revision petition challenge 3 the correctness of the decision of the learned District Judge in respect of all the preliminary issues. The learned counsel for the petitioners, however, has restricted his arguments only to the question of the maintainability of the suit under the Copyright Act of 1911 read with Copyright Act of 1914.

2. The two musical works are admittedly Italian and are, therefore, of a foreign country. Copyright Ordinance, 1962, (Ordinance XXXIV of 1962), was made and published in the Gazette of Pakistan, Extraordinary, dated the 2nd of June 1962. It was to come into force on such date as the Central Government was to appoint by a notification in the official Gazette. Under section 83 of the Ordinance the Copyright Act, 1914 (III of 1914), and the Copyright Act, 1911, passed by the Parliament of the United Kingdom (1‑2 Geo. 5 c. 46), as modified in its application to Pakistan by the Copyright Act, 1914, was repealed. The' law applicable to Pakistan prior to the promulgation of the Ordinance was, therefore, the Imperial Copyright Act, 1911, as modified by the Copyright Act of 1914. It so happened that the Central Government has not appointed any date for the enforcement of the Copyright Ordinance of 1962. The result is that Copyright Act of 1914 and the Imperial Copyright Act of. 1911, are laws still in force for the purpose of the copyright. The Copyright Act of 1911 applied under section 25 to the United Kingdom and extended throughout His Majesty's dominions. It, however, did not apply to the self‑governing dominions which are defined in section 35 to mean the dominion of Canada, the Commonwealth of Australia, the dominion of New Zealand and the Union of South Africa and Newfoundland. Thus India was not a self -governing dominion and the Copyright Act, therefore, extended in its application to that country as well. The power was given under section 27 to the Legislature of any British Possession to which the Act applied to modify or add to any of the provisions of the Act in its application to the "possession." In pursuance of the powers so given the Copyright Act (Act No. III of 1914) was enacted to modify and add to the provisions of the Copyright Act, 1911, in its application to India. A copy of the Imperial Act excepting such of the provisions thereof as were expressly restricted to the United Kingdom was set out in the 1st Schedule. Under section I it was provided that Copyright was to subsist in every original literary dramatic, musical and artistic work if in a case of published work, the work was first published within His Majesty's dominions and in the case of unpublished work, the author was at the date of the making of the work a British subject or resident within the Majesty's dominions. It did not apply to any works of foreign countries unless the Act was extended by Order in Council. Under section 29, His Majesty could by Order in Council, direct that this Act (except such parts, if any, thereof as may be specified in the Order), was to apply to (a) works first published in a foreign country to which the Order relates, in like manner as if they were first published within the parts of His Majesty's dominions to which this Act extends; (b) to literary dramatic musical and artistic works, or any class thereof, the authors whereof were, at the time of the making of the works, subjects or citizens of a foreign country to which the order relates, in like manner as if the authors were British subjects; and (c) in respect of' residence in a foreign country to which the Order relates in like manner as if such residence were residence in the parts of His Mrjesty's dominions to which the Act extends; and thereupon the Act could apply accordingly. This order could be made in respect of a country with which His Majesty had entered into convention relating to Copyright without any formality or condition. In other countries, however, the order could be issued only on His Majesty being satisfied that that country has made a provision for the protection of works published in United Kingdom of British dominions and entitled to copyright under Part I of the Act. The Order in Council made under section 29 of the Act was to apply under section 30 to all His Majesty's dominions to which the Act applied. The statutory powers to extend the Copyright Act, 1911, to foreign works has been exercised by the Copyright (game Convention) Order, 1933, (S. R. & O.1933, 253) printed in S. R. &O. Revenue, 1948 Volume IV, pages b95‑946, and it applies to foreign countries which are members of the Copyright Union. Italy is one of the foreign countries of the Copyright Union. Although the Copyright Act, 1911, conferred no copyright upon works first published in foreign countries, but by virtue of the Copyright (Rome Convention) Order, 1933, the protection of the Act has been conferred upon such works in like manner as if they were first published within her Majesty's dominions. The musical works, which are the subject‑matter of the suit, being first published in Italy, have the protection of Imperial Act, 1911, and any infringement can give rise to a cause of action for a remedy by way of injunction or damages under section 6 of the Act.

3. It was, however, argued that the Imperial Act, 1911, was not applicable in Pakistan. The argument put forth is without any basis. The Copyright Act, 1911, applied throughout British dominions except a self‑governing dominion. As pointed out earlier, India was not a self‑governing dominion. The Copyright Act, 1911, was, therefore, applicable to India. Under section 37 (2) (d), the Act was to come into operation in British Possession `on the proclamation thereof within the possession by the Governor.' The proclamation was issued in India on the 30th of October, 1912. The Act, therefore, became applicable to India and has remained in operation till its Independence in 1147 with such modifications and additions as were introduced by Act 3 of 1914. By the Indian Independence Act, 1941, India and Pakistan were established as independent dominions and the Imperial Copyright Act, 1911, and the Copyright Act, 1914, being the existing law, continued as law of each of the new dominions under section 18 thereof and no provision was made on the subject by laws of the Legislature of the dominion of Pakistan. The existence of these laws was continued by the Constitution of 1956; the Laws (Continuance in Force) Order I of 1958, and finally by the Constitution of 1962. This fact is borne out by the fact that Copyright Act of 1914 and the Imperial copyright Act still figure in the publications by the Central Government of the un-repealed statutes.

4. Since the Copyright Convention Order, 1933, was issued under the Copyright Act, 1911, it also retrained operative so far as the works published in foreign countries of the Copyright Union are concerned. That being so, the works published in Italy have the same protection of the Act as were conferred aeon such works in like manner as if they were first published to Pakistan.

5. The suit of the plaintiffs‑respondents alleging infringement of the copyright is, therefore, maintainable under section 6 of the Imperial Copyright Act, 1911. The revision petition has do merit and is accordingly dismissed with costs. K. B. A. Petition dismissed.