Gama Prasad Agarwalla and Another vs Nabahash Goswami and Others

G. Mehrotra, C.J.—This is an appeal by the principal Defendants. There is an institution known as the ''Nowgong Natya Samity which is also known as the ''Nowgong, Dramatic Club''. Plaintiff No. 1 was a member and the Chairman of the said institution and Plaintiff No. 2 was at the relevant time a member and the General Secretary of the Samity. Plaintiff No. 3 who was also a member of the club, was subsequently added by the order of the District Judge, Lower Assam Districts, Gauhati. The suit has been brought in the representative capacity, the Plaintiffs representing all the other members of the club.

The allegation of the Plaintiffs is that the Nowgong Natya Samity has been constituted for recreation and amusement to its members and the public and with the object of improving art and enriching Assamese literature by encouraging authors to write and compile dramas in Assamese language. Pro forma Defendants Nos. 5-7 wrote an Assamese drama known as ''Piyoli Phookan''. This was printed and published on the 1st September 1948 by the pro forma Defendant No. 8, the Associated Service Limited, Nowgong, of which the pro forma Defendant No. 1 is the Managing Director at the instance and under the guidance of the Nowgong Natya Samity and thus the Samity became the sole owner and proprietor of the publication and reserved its copyright in that drama.

The Defendants without obtaining any permission and authority from the Plaintiffs converted by cinematograph the said drama into a motion picture and exhibited the film first at Gauhati on or about 2nd December 1955 a thereafter in different places of Assam including Bongaigaon, Goalpara, Nowgong, Golaghat, Naharkatiya, Lidu and Margherita and earned immense profits. The Defendants thus infringed the copyright of the Plaintiffs Nowgong Natya Samity. The Plaintiffs claimed the following relief:

The recovery of Rs. 20,000 as damages and permanent injunction restraining the Defendants from showing the film.

The defence taken was that the Defendants did not infringe the copyright. The drama was written by the Defendants and the suit as framed was not maintainable.

The trial court decreed the suit for Rs. 5,000 as damages against the main contesting Defendants Nos. 1 to 4 with a direction that the amount may carry future interest at the rate of six per cent per annum.

In this appeal the findings of the court below have been assailed. The first point urged is that the Plaintiffs have no copyright and thus they have no right to bring the suit either for the recovery of damages or for injunction secondly it is urged that the picture has been based on the drama written by the Defendants and it is not a copy of the drama printed by the Plaintiffs.

Thirdly it is urged that the Plaintiffs have (sic) to prove the amount of damages. The court below after having held that the Plaintiffs (sic) failed to prove that the Defendants have (sic)rned huge profits and have failed to prove (sic)amount of profits received by the Defendants, was wrong in decreeing the suit for Rs. 5,000 as compensation as the price for permission they would have received for converting the drama into a film.

u/s 2(d) of the Copyright Act, 1957 (Act XIV of 1957) (hereinafter called ''the Act'') the word ''author'' has been defined as follows:

(d) ''author'' means,-

(i) in relation to a literary or dramatic work, the author of the work;

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(v) in relation to a cinematograph film, the owner of the film at the time of its completion.

Only the relevant provision of the Sub-section has been quoted above. u/s 2(m) of the Act ''infringing copy'' has been defined as follows:

(m) ''infringing copy'' means

(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film.

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Only the relevant provision of the Sub-section has been quoted above. Section 13 of the Act provides:

13(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) records.

Section 13(3)(a) lays down that copyright shall not subsist in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work. Section 17 reads as follows:

Subject to the provisions of this Act, the author or a work shall be the first owner of the copyright therein: Provided that-

(a) 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 newspaper, magazine or similar periodical under a contract of service or apprenticeship, 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 magazine or similar periodical, or to the reproduction of the work or the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;

(b) subject to the provisions of Clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be first owner of the copyright therein.

(c) in the case of a work made in the course of the author''s employment under a contract of service or apprenticeship, to which stitution known as the ''Nowgong Natya Samity which Clause (a) or Clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

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Only the relevant provisions of the section have been quoted above.

The contention of the Appellants is twofold. Firstly it is urged that the author of the film is the owner of the film which is the Defendant, at the time of its completion and u/s 17 the copyright of the film vests in the author as defined under the Act. Secondly it is urged that in any case the Plaintiffs admittedly not being the authors of the drama ''Piyoli Phookan'' are not the owners of the copyright u/s 17 of the Act, and thus have no right to bring the present suit.

So far as the first contention of the Appellants is Concerned, in view of the provisions of Section 18(3), if it is found that the film is an infringement of the copyright in the book ''Piyoti Phookan'' inasmuch as it is a substantial reproduction of the same, the owner of the film can have no copyright in the same. As to the second contention raised by the Appellants the Respondents have based their claim on Section 17 Proviso (c). This proviso requires that the author should be in the employment under a contract of service. u/s 18 there can be an assignment of the copyright but the assignment u/s 19 of the Act has to be in writing signed by the assignor or by the duly authorised agent.

In the present case there is no evidence of any writing under which the authors have assigned their right to the Nowgong Natya Samity. The only question is whether the case is covered by the Proviso (c) to Section 17. There is no allegation in the plaint that the authors were employed by the Nowgong Natya Samity under a contract of service and in the course of employment they wrote out the book. Paragraph 2 of the plaint reads as follows:

That the Assamese Drama Piyoti Phookan was written by the pro forma Defendant Nos. 5-7 and printed and published on 1st September 1948 by the pro forma Defendant No. 8 of which the pro forma Defendant No. 1 is the Managing Director at the instance and under the guidance of the aforesaid Nowgong Natya Samity who bore all the expenses of printing and bringing it out before the Public became the sole owner and proprietor of publication and expressly reserved its copyright thereto.

In this paragraph it is only asserted that the drama was written by Defendants Nos. 5-7 under the guidance of the Nowgong Natya Samity and the Samity bore all the expenses of printing and bringing it out before the public. There is no allegation that the authors pro forma Defendants Nos. 5-7 were under employment of the Samity under any contract of service.

Sri Sarada Kanta Bardoloi who is arrayed as pro forma Defendant No. 1 and has been examined as witness No. 1 for the Plaintiff and has stated as follows:

At the request of the said Dramatic Club (Nowgong Dramatic Club), myself, Sri Jugal Kumar Das and Shri chandra Kanta Phukan jointly wrote a drama known as ''Pivoli Phukon''. That drama was printed and published by the Associated Service Limited of Nowgong. Sri Chandra Kanta Phukan was the Managing Proprietor of the said Associated Service Limited. We the joint authors made over the manuscript of this drama after its completion to the ''Nowgong Natya Samity'' and its printing costs were entirely borne by the said Natya Samity. Nowgong Natya Samity also holds the copyright of the same and none of the joint authors reserved any rights to himself.

The statement that the Nowgong Natya Samity possesses the copyright of the drama is only the opinion expressed by the witness. There is nothing in his statement which will establish any employment under any contract of service.

P.W. 2 Jugal Das who was one of the authoris and is arrayed as pro forma Defendant No. 6 has stated as follows:

At the request of the Nowgong Dramatic Club, myself, Sri Chandra Kanta Phukan and Sri Sarada Bardoloi wrote an Assamese drama called ''Piyoli Phukon'' towards the latter part of 1947. I was a school teacher there at the time. The three of us made an experiment in writing a drama on co-operative basis. * * * *

After completing the manuscript we made it over to the Nowgong Dramatic Club, We did not take any remuneration and we motivated by a desire to do service to the club. Nowgong Dramatic Club which is also known as Nowgong Natya Samity, bore all the expenses of printing and publishing the book, and the whole proprietary right in respect of the book vested in the said club.

This again is an opinion expressed by this author.

P.W. 3 Chandra Kanta Phukon has also stated as follows:

I am one of the joint authors of this drama Piyali Phukon (Ext. 2). Jugal Das and Sarada Kanta Bardoloi were the other two joint authors.

We wrote this drama at the request of the Nowgong Dramatic Club. Sri Rabindra Ram Khaund was the Deputy Commissioner of Nowgong at the time and he greatly encouraged us in this our joint venture. * * * * After the book was completed and while it was still in manuscript form it was staged on several occasions by the Nowgong Dramatic Club both at Nowgong and at Gauhati. * * * *

Later on, Nowgong Dramatic Club printed this drama at its own expenses, it was published in the name of tine Associated Service Limited of Nowgong but it was clearly mentioned in the book itself that Nowgong Dramatic Club was the holder of the copy right.

This witness has said in his cross-examination that the three authors did not execute any formal deed of gift in respect of its copyright in favour of the Dramatic Club. But the club recorded some formal resolutions.

There is thus no evidence to show that the authors were in the employment on the Club under a contract of service and that in the course of the authors'' employment the work was done. All the witnesses have said that after the work was complete the manuscript was handed over to the Dramatic Club for publication and the Dramatic Club printed and published it at its expense.

Section 30 of the Act provides for grant of licences. It lays down that the owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent. There is nothing in the record to show that any licence was granted to the Nowgong Dramatic Club. Reliance is also placed on Ext. 2 the printed copy of the drama which contains a note by the publishers that all rights are reserved by the Nowgong Natya Samity, Nowgong, Assam. This note by the publisher neither confers any right of ownership on the Nowgong Natya Samity, nor can it be regarded as an assignment or a licence by the authors in favour of the Nowgong Natya Samity.

Section 55 of the Act gives the right to the owner of the copyright, if it had been infringed, to bring a suit for injunction, damages, accounts and any other relief which a person on the infringement of his right is entitled to get. Thus u/s 55 only the owner which includes for the purposes of this section a licensee as set out in Section 54 of the Act, can bring a suit for injunction and damages. In the present case on our finding that the Plaintiffs have failed to prove that they are the owners of the copyright, the suit is not maintainable. As, however, the point has been argued, we will also briefly discuss the other points raised in appeal.

In Paragraph 8 of the plaint the Plaintiffs have set out the similarity between the drama published by the Associated Service limited under the guidance of the Plaintiffs and the picture produced by the Defendants. Court below has held that Pioli was a historical figure, that he made a conspiracy at karaideo Rajamaidam, that the British armoury was set on fire, that Piyoli Phukon was arrested and that he was hanged are historical facts though unpublished. He, however, held that the introduction of the crutch is an imitation of the crutches introduced in the drama published in 1948.

He has also held that the activities of the dancing girl Padumi such as giving signal by whirling two candles from the candle stand, the holding of the wick by Piyoli and the lighting the connection are also limitations bor(sic)owed from Ext. 2 the published drama. He has also compared some of the speeches in the drama and on these three considerations he has (sic) that the Defendants have infringed the copyright of the drama (Ext. 2) of Nowgong Natya Samity by imitation and cinematographing the same without taking permission from Nowgong Natya Samity.

The case of the Defendants was that Defendant No. 2 Phani Sarmah wrote the story scenario of the film ''Piyoli Phukon'' with his own ideas as also with the ideas derived from historical facts and legends about ''Piyoli Phukan'' in an original and new manner and prepared the dialogue in his own language. He assigned his copyright to Defendant No. 1. The Defendant No. 2 also directed the said film Piyoli Phukan'' and played therein the leading role of Gumdar Gohain and thus they have not infringed the copyright.

Section 51 of the Act lays down when it can be said that a copyright has been infringed. The explanation attached to Section 51(sic) is as follows:

For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an ''infringing copy. Thus it will have to be examined whether the cinema film can be said to be a reproduction of the drama alleged to have been published by the Plaintiffs in 1948.

In Halsbury''s Laws of England, Third Edition, Volume 8 at page 426 what constitutes infringement is set out as follows:

The fact that a work complained of does not suggest the original is not sufficient be enable a Plaintiff to succeed in his action, for the similarity may be due to the fact that both works are derived from a common source or dial the similarity rests in the idea of the work and not in its form; the onus is on the Plaintiff to show that the Defendant, in making his work, has appropriated the labours of the Plaintiff.* * * * The question whether the Plaintiff''s labours have been so appropriated is one of fact * * * * Copying does not Constitute an infringement of copyright unless a substantial part of the work is copied * * * *.

Both the works have got to be taken as a whole to see whether there has been any such infringement. At page 429 of the same volume the following passage occurs:

There is, however, no copyright in a mere plot. In considering whether a film is an infringement of copyright in a novel the proper inquiry is whether, keeping in view the idea and general effect created by a perusal of the novel, such a degree of similarity is attained as would lead one to say that the film is are production of incidents described in the novel or of a substantial part thereof. The film must either use in its captions a substantial part of the words of the Plaintiff''s work, or colourable imitations thereof; or must use, in its pictures, a substantial part of the dramatic incidents represented, or colourable imitations thereof.

In the case of Moulvi Omar Ali Barlashkar v. Jnan Ranjan Mitra reported in (1935) 61 CLJ 573, the Calcutta High Court held as follows:

There is no copyright so far as the general plan, style and arrangement of a book is concerned. If an author saves himself the trouble and labour requisite for collecting informations by adopting another author''s work with colourable variation, he becomes guilty of infringement of the copyright of the latter even though his work is based on materials which are common property.

It is open to an author to adopt in his book words and expressions which have been used by the other author before, so long as such words or expressions were not the latter author''s coinage.

It will be in each case a question of fact to be determined from the circumstances and from the extent of the similarity to decide whether the producer of the film intended to utilise the labour and the art of the drama writer and produced a picture similar in nature td that of the drama. The character and the substantial part of the plot has been held by the Court below to be of historical origin and if based on those historical facts the Defendant produced a film, even though there may be some similarity, it cannot be said that there has been an infringement of the copyright.

The two facts which have been emphasised by the Court below have already been referred to by me in the earlier part of my judgment. They are - (i) that Piyoli Phukan is shown as moving on a crutch and (ii) the activities of the dancing girl. If it is a historical fact that Piyoli Phukan was lame, merely because the film shows him moving on the crutch as in the drama, it cannot be said that there was any infringement committed by the Defendants. It being a historical fact that he was lame, it is natural that both in the drama and the film he will be shown to be moving on crutch. It also being a historical fact that Piyoli Phukan made a conspiracy at Saraideo Raja maidam and that the British armoury was set on fire, the introduction of the dancing girl and her giving signals are matters which any one normally in a drama or film is likely to introduce. It cannot, therefore, be said that by producing the film the Defendants intended (sic) utilise the labour of the authors of the drama and gave it a colourable representation.

It is also difficult for us to hold that the Plaintiffs will be entitled to a lump sum of Rs. 5,000/- as the price for permission they would have received for converting the drama into a film. The conversion itself may make a person liable for damages. But the amount of Rs. 5,000/- appears to have been arbitrarily fixed by the Court below. In our opinion, therefore, this appeal must be allowed and the judgment of the Court below be set aside. The suit of the Plaintiffs stands dismissed. Parties in the circumstances will bear their own costs. As we have allowed the appeal, the cross-objections are dismissed, but no order as to costs.