P.N. Nag, J.
For the In this application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908, the plaintiff has prayed that the defendants may be restrained from infringing the plaintiffs' copyrights in whole or in part or abridgment thereof in the book under the title "Aangan Ka Panchi Aur Banjara Mun" authored by Shri Vidhya Niwas Mishar, now published in the book "Aangan Ka Panchi Avam Annay Nibandh". To this effect vide order dated 19th September, 1990 this Court granted an ex parte ad interim injunction, and the application now has to be heard for final disposal.
2. The relevant brief facts set out in the plaint are that the plaintiff firm which is a leading publishing concern dealing with publication of literary works mainly in Hindi, entered into an agreement with defendant No. 2 on 10th February, 1988, (Annexure A) wherein defendant No. 2 has assigned the copyrights of his book, namely, "Aangan Ka Panchi Aur Banjara Mun" being the author of the book in favour of the plaintiff firm for publication. Vide the aforementioned agreement defendant No. 2 has assigned the copyright for a limited period, i.e., upto 50 years after his death for publication of the book in whole or in part or abridgement thereof for a monetary consideration on the basis of the royalty @ 15% on the sale of bound books and 10% on the sale of unbound books and subject to other conditions contained in the agreement. On the basis of such an agreement, the plaintiff got published "Aangan Ka Panchi Aur Banjara Mun" first edition in 1988 and second edition in 1989 on the title of which the name of defendant No. 2 is printed prominently (Annexure B). The plaintiff firm has been selling the said book in the market, which has a good market, and has been paying the royalty to defendant No. 2 as per the agreement till date and there is no dispute with defendant No. 2 on any point of time on any issue during this period. The book "Aangan Ka Panchi Aur Banjara Mun", because of a
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great classical literary work, has been prescribed in the Ist Year Examination of Compulsory Hindi Examination, 1991 (10 + 2 + 3) system of education of University of Ajmer. The plaintiff firm earns huge profits while publishing the book "Aangan Ka Panchi Aur Banjara Mun" for the purpose of sale. However, on having seen the advertisement published in 'Dainik Navjyoti' dated 29th August, 1990, a newspaper published from Ajmer, the plaintiff firm came to know that another book "Aangan Ka Panchi Avam Annay Nibandh" author Vidhya Niwas Mishra, Price Rs. 5/- only also has been published by defendant No. 1, another publisher. Defendant No. 1 has mentioned in the advertisement that the above book, i.e. "Aangan Ka Panchi Avam Annay Nibandh" is prescribed for syllabus in University of Ajmer and is available for sale. The plaintiff firm came to know of this fact on 11th September, 1990 when she received a photo copy of the newspaper 'Dainik Navjyoti' along with copy of the book published by defendant No. 1. The plaintiff firm has exclusive copyrights in publication of the book "Aangan Ka Panchi Aur Banjara Mun". In the book "Aangan Ka Panchi Avam Annay Nibandh" published by defendant No. 1 at the press of defendant No. 3 consisting of 48 pages in addition to the title cover out of which pages 12 to 48 are five essays, bodily lifted verbatim from the book published by the plaintiff "Aangan Ka Panchi Aur Banjara Mun". The publication of the book "Aangan Ka Panchi Avam Annay Nibandh" consisting of five articles from the book of the plaintiff firm "Aangan Ka Panchi Aur Banjara Mun" is infringement of the exclusive copyright of the plaintiff firm by defendant No. 1 in collusion with defendant No. 3 under the Copyright Act, 1957
3. Defendant No. 1 has filed the written statement stating that the plaintiff's suit is totally misconceived, mischievous, mala fide, vexatious and not maintainable in the eyes of law and no assignment of copyright by the author in favour of the plaintiff as alleged has been violated in any manner or at all. In fact, there is license of publishing agreement dated 10.2.1988 in favour of the plaintiff and not an assignment of copyright. According to them, as a matter of fact, defendant No. 1 published "Aangan Ka Panchi Avam Annay Nibandh" on the strength of the agreement dated 24.6.1990 (Annexure D-1/1) whereby the author Shri Vidhya Nivas Mishra assigned the right to the answering defendant to publish and sell the same. The University of Ajmer, had proposed to include five of the articles (Anubandhs) written by Shri Vidhya Nivas Mishra in its syllabus, namely, (i) Aangan Ka Panchi (ii) Parthiv Dharam (iii) Agra Purush (iv) Prabhutva Jwar Aspatal and (v) Meri Rumal Kho Gaye. Upon coming to know about this proposal, defendant No. 1 in May, 1990 vide its letter approached the author Shri Vidhya Nivas Mishra for assignment of rights of publication and sale of the above and/or any other articles of the Author as included in this syllabus of University of Ajmer. The book to be published by defendant No. 1 was in the form of text book confined to this syllabus. The author vide letter dated 13.6.1990 agreed to the said assignment of rights on payment of 10% royalty. Consequently the agreement dated 24.6.1990 was entered into between the defendant No. 1 and the author, defendant No. 2. Defendant No. 1 published the book on the strength and assignment of rights by the Author in its favour under the said agreement dated 24.6.1990. The publication of the book by defendant No. 1 is, thus, lawful, legal and with authority.
4. There is no dispute, however, that the five article, namely, (i) Aangan Ka Panchi (ii) Parthiv Dharam (iii) Agra Purush (iv) Prabhutva Jwar Aspatal and (v) Meri Rumal Kho Gaye written by Shri Vidhya Nivas Mishra have been incorporated in the book "Aangan Ka Panchi Avam Annay Nibandh". These articles also find place in the book published by the plaintiff "Aangan Ka Panchi Aur Banjara Mun" but there is certain other material as well in that book.
5. Counsel for the plaintiff, Mr. Arvind Jain, vehemently contended that defendant No. 1 by having published the book "Aangan Ka Panchi Avam Annay Nibandh" which consists of five articles from pages 12 to 48 from the book "Aangan Ka Panchi Aur Banjara Mun" published by the plaintiff has infringed the exclusive copyright of the plaintiff in collusion with other defendants. Such publication has been made with malacious intention to earn huge profits and cause huge losses to the plaintiff. If the injunction as prayed for by the plaintiff is not granted, it will cause great injury and loss to the plaintiff which cannot be compensated with costs and that further balance of convenience lies in its favour and, therefore, this is a fit case where ad interim injunction issued by this court on 19th September, 1990, should be confirmed till the disposal of the suit.
6. The counsel of defendant No. 1, on the other hand, contended that there is no assignment of copyright by the author in favour of the plaintiff as alleged. In fact it is only a publication agreement and all the copyrights are reserved with the author. According to defendant No. 1 this fact is corroborated by the plaintiff's own declaration in the book which reads :
which means all rights (whatsoever) are reserved with the author. Defendant No. 1 has incorporated these articles in the book "Aangan Ka Panchi Avam Annay Nibandh" on the strength of an agreement dated 24.6.1990 entered into between the defendant No. 1 and defendant No. 2.
7. In order to appreciate the rival contentions of the parties, it would be necessary to determine whether the agreement dated 10.2.1988 entered into by the plaintiff with defendant No. 2, is merely a license of publishing agreement or amounts to assignment or partial assignment of copyright for which I will have to refer to the relevant clause (clause 4) of the agreement, English translation of which has been submitted by the plaintiff and corrected by me. Clause 4 reads as :
"4. In consideration of the remuneration hereinafter mentioned in this agreement, the author is giving exclusive/sole right to publish to the Publisher of this Book, any part and any concise form thereof for the period of time prescribed by Copyright Act and the author without the permission of the publisher will not give the right at any place to publish this book, any part or concise form thereof."
" 8. The publisher agree to give the following remuneration to the author.
(1) 15% royalty on the written price of the Book (Bound).
(2) 10% royalty on the written price of the Book (Unbound)."
" 11. The publisher shall send the statement of sale and of stock of the book to the author neither three months after completion of the financial year for his perusal and satisfaction and the amount of royalty shall be sent to the author by the September, next."
" 12. After the completion of the editions of the Book in case dispute written request of the author if the publisher does not publish the next edition within a period of one year then the right given under this agreement shall revert back to the author and he shall be able to make arrangements for the publication of this book himself. The author shall get the compiled blocks of the book from the author at half the price."" 13. In case any dispute with regard to the meaning compliance, breach or rights and liabilities of either of the parties in relation to this agreement arises then the same shall be decided by Arbitration. If in case matter is taken to courts, then it shall be only in courts at Delhi."
8. In a case decided by Queen's Bench Division reported in Jonathan Cape Ltd. v. Consolidated Press Ltd. (1954 - Vol. 3 - All England Reports 253) on which strong reliance has been placed by the plaintiff's counsel, the author agreed to grant to the plaintiffs the exclusive right to print and publish an original work or any part or abridgment thereof. The defendants, without the plaintiffs consent published substantially the same work in the issue of "The Australian Women's Weekly". The Court held on the construction of various clauses of the agreement that this exclusive right to publish original work or any part or abridgment thereof was a partial assignment of the copyright by the author to the plaintiff and accordingly the plaintiff was held entitled to damages. From this case it becomes apparent whether or not a publishing agreement in which exclusive right to print and publish work is given by the author to the publisher amounts to assignment of a right or partial assignment of right, depends upon interpretation of various clauses of the agreement. All the clauses of the agreement have not been given in that judgment and whatever are mentioned therein they are not para materia with the clauses of the agreement in the present case. Therefore, the authority cited by the learned counsel for the plaintiff is of not much help in deciding the present case. Moreover, in view of the law and position discussed on this subject hereinafter it would be rather be difficult to follow this authority.
9. Next whether or not the above publishing agreement between the author and the publishers assigns or partially assigns the copyright, it would be relevant in this context to refer to a case reported as M/s. Mishra Bandhu Karyalaya and others v. Shivratanlal Koshal 1970 AIR(MP) 261) which is very instructive on the subject. In paragraph 22. Their Lordships while referring to the English law on the subject have observed that,
"where under an agreement between an author and his publisher licence is conferred on the publisher without limitation to any definite period, and where payment to the author is by royalties or by a share in the profits, the licence, although exclusive so long as it exists, is revocable; and the author can restrain the publication of any edition subsequent to the notice of revocation. Reade v. Bentle (1858 4 K and J 656 and 1874 18 Eq 497)."
In the case of agreements between authors and publishers, or theatrical producers, it is often difficult to distinguish between a sole and exclusive licence and an assignment of copyright. Where the agreement between the author and his publisher contains no express terms as to the copyright, if the consideration is payment to the author of royalties or a share of the profits instead of a sum of money paid down, the inference is that the copyright is not assigned, but that a sole exclusive licence is concerned upon the publisher. Hole v. Bradbury (1879- 12 Ch(D) 886) at p. 895, per Fry, J. Re. Jude's Musical Compositions (1907- 1 Ch 651 (CA)), Stevens v. Benning (1855-6 De Gm and G 223) and Commr. of Inland Revenue v. Longmans Green and Co. Ltd. (1932 Macg Cop Cas (1928-35) 345) (at p. 414). Applying the above principles, to the agreement in question, we are clearly of the view that the aforesaid agreement dated 13th March, 1952 (Ex. P. 5) created a licence in favour of the defendant firm M/s. Mishra Bandhu Karyalaya, who thereupon acquired the benefits of a publishing agreement subject to their fulfilling the terms and conditions contained therein. We are fortified in this conclusion by the following observations in Copinger and Shone James on Copyright, 9th Edn., at p. 384 :
"But wherever there are continuous obligations on the part of the publisher - for instance, the payment of royalties to the author - the tendency of the courts is to construe the agreement as conferring upon the publisher a conditional licence to publish rather than as giving him an equitable title to the copyright."
In this connection it would also be appropriate to refer to another case reported as William Butler Yeate (through E.M. Chambers) v. Prof. Eric Dickinson and others 1938 AIR(Lahore) 173) wherein the author agreed to grant the publishers the sole and exclusive license to print, publish and sell his works in book form in the English language in certain parts of the world but reserved the entire copyright of the volume as his property and also reserved to himself all other rights except those mentioned in the agreement. The court held that the agreement merely amounted to a publishing agreement and could not be regarded as an assignment of copyright.
10. Applying the above test and principles laid down in M/s. Mishra Bandhu Karyalaya and other (supra), I have no hesitation to hold that this agreement only means license for publishing agreement and cannot be regarded as an assignment or partial assignment of copyright. From the perusal of the clauses of the agreement, it is clear that there has not been assignment in specific words of Copyright Act. The author has given the exclusive right to publish and print on payment of certain royalty agreed on the books sold and not in lieu of lump sum for which a statement of sale and stock of books will be furnished regularly to the author every year. All the rights conveyed to the publisher in the agreement shall revert absolutely to the author if after the expiration of one year from the written request of the author and after the end of the edition if the publisher does not publish the new edition.
11. Furthermore, certain conditions/obligations on the part of the publisher towards author have been incorporated on account of royalty etc. and the provision has been made for arbitration or power has been given to court to construe the agreement and apparently if those conditions of the agreement are not fulfilled the agreement could be revoked and, therefore, it can safely be said that the author has not assigned or partially assigned the copyright but it is only the publishing agreement between the author and the publisher and only a licence has been created.
12. This finding is also supported and corroborated by the declaration made by the plaintiff on the book "Aangan Ka Panchi Aur Banjara Mun": "Sarvadhikar Lekhakadhin" meaning thereby all rights (whatsoever) are reserved with the author.
13. In view of the above finding the very foundation of the plaintiff's case that by having given the exclusive right of publication of the book "Aangan Ka Panchi Aur Banjara Mun" there has been assignment or partial assignment of copyright stands demolished and the plaintiff-applicant has, therefore, no prima facie case in its favour.
14. The next argument advanced by the learned counsel for the plaintiff was that in case he is not considered to be the owner of the copyright then at least it should be considered as the exclusive licencee who has been given exclusive licence to print and publish the book "Aangan Ka Panchi Aur Banjara Mun" and under Section 54 of the Copyright Act he is the owner of the copyright and has every right to institute the present suit and is entitled to get an injunction from the court as prayed for. It is no doubt true that the plaintiff has been given the right to publish and print, i.e., exclusive right of publication of the book "Aangan Ka Panchi Aur Banjara Mun" but that was subject to certain conditions as embodied in the agreement and non-fulfilment of those conditions can result in revocation of the agreement. The plaintiff has not set up a case of exclusive licence in the pleadings. Whether or not the plaintiff should be regarded as an exclusive licencee depends upon many factors like whether or not under the agreement the plaintiff is the exclusive licence and if so whether or not the plaintiff has continued to fulfil the obligations, enjoined on them under various clauses of the agreement and that whether or not this licence still continues to operate or has been revoked etc., which have to be pleaded, In the absence of such pleadings, it is not permissible for the plaintiff to raise this argument. The only case set up by the plaintiff is that vide the agreement copyright has been assigned to the plaintiff, which is not the correct position under the law as already held by me earlier.
15. I am, therefore, of opinion that the plaintiff has no prima facie case in its favour. This finding is supported and corroborated by the declaration of the plaintiff on the book "Aangan Ka Panchi Aur Banjara Mun", "Sarvadhikar Lekhakadhin". The fact that all rights are reserved with the author and there is no assignment of copyright unto the plaintiff by the author is further supported by the fact that the book "Aangan Ka Panchi Aur Banjara Mun" is being published by " Bhartiya Gyanpeeth Prakashan and is included in their list of books for the year 1990.
16. Further, the book "Aangan Ka Panchi Avam Annay Nibandh" is a syllabus edition specifically meant for and covering the syllabus of Ajmer University which consists of only five essays of the author, namely :
(1) Aangan Ka Panchi (2) Parthiv Dharm (3) Agra Purush (4) Prabhutva Jwar Aspatal and (5) Meri Rumal Kho Gaye. The book of defendant No. 1 is in the form of a syllabus edition unlike the book of the plaintiff and is priced only Rs. 5/- whereas the price of plaintiff's book is Rs. 10/- and more, and as such defendants book can be purchased easily by the students in the present day financial crisis. The author has retained the copyright with him and both the plaintiff and defendant No. 1 claim exclusive right of publication on the basis of the agreements. In the aforementioned circumstances the balance of convenience would also not lie in favour of the plaintiff. Further no irreparable injury would be caused to the plaintiff in case injunction is not granted. In these circumstances, no case has been made out by the plaintiff for issuing of injunction against the defendants as prayed for and as such the injunction granted by this court on September 19, 1990 is vacated. The application is dismissed.
17. I may, however, observe that the observations made and findings given by me are only tentative and will not have any bearing on the merits of the case