Manjeh Cine Productions vs A. Sundaresan and Another

K. Veeraswami, C.J.—This appeal comes before us from an order of Maharajan J., on a preliminary issue in a suit brought by the first

Respondent for certain reliefs on an alleged infringement of his copyright in a Tamil story Nazhuval written by him. He asked for a permanent

injunction restraining the Appellant from exploiting a film Iru Malargal which, according to the first Respondent, was a reproduction of his story. In

addition to the relief of injunction, he also asked for damages. An additional issue was settled to the effect

whether the Plaintiff''s suit is not maintainable for non-registration of his copyright in the story Nazhuval ?

It seems to us that the view of Maharajan J., is correct. We have carefully looked into the Copyright Act, 1957, and no where in it do we find

any justification for holding that registration is a sine qua non or a condition precedent to the subsistence of copyright or acquisition of ownership

thereof or reliefs for infraction of copyright. Mishra Bandhu Karyalaya and Others Vs. Shivratanlal Koshal, took a contrary view: but, with due

respect, we are unable to agree with it. The Copyright Act, 1957, amended and consolidated the law relating to copyright. Chapter III relates to

copyright. Section 13 lists out works in which copyright may subsist, as for instance original literary, dramatic, musical and artistic works,

cinematograph films and records. Sub-section (1) of Section 13 states in which cases copyright shall not subsist subject to exceptions. Section 14

is important which defines copyright. Copyright means the exclusive right in one or other of the words specified in the Sub-section. This is, of

course, copyright by virtue of and subject to the provisions of the Act. Section 15 declares that no copyright shall subsist in any design registered

under the Indian Patents and Designs Act, 1911. Sub-section (2) of this section deals with a particular design which is capable of being registered

under the Indian Patents and Designs Act, 1911, but which has not been so registered. Such design shall cease as soon as any article to which the

design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his licence, by

any other person. Then we have Section 16 which makes it clear that there shall be no copyright except as provided in the Act. Copyright,

therefore, is a creation of the statute. Might be that it originally subsisted under the common law. But that has been replaced by the statute law and

copyright subsists as provided by the Copyright Act, 1957 and by virtue of and subject to its provisions. No person u/s 16 shall be entitled to

copyright or any similar right in any work, whether published or unpublished, otherwise than under an in accordance with the provisions of the Act

or of any other law for the time being in force. Chapter IV deals with ownership of copyright and the rights of the owner, Chapter V, with term of

copyright, Chapter VI, with licences, Chapter VII, with performing rights societies and Chapter VIII, with rights of Broadcasting Authorities. We

have then Chapter X dealing with international copyright. Registration of copyright is dealt with by Chapter X. It provides for the procedure for

registration of copyright. A register shall be kept for that purpose and entries in the register shall be made of copyrights. A system of index should

be maintained. Form and inspection of register are contemplated. Section 48 which seems to throw considerable light on the question we have to

decide, is this:

The Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries

therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in

evidence in all courts without further proof of production of the original.

Power is given to the Registrar of Copyright by the next section to amend or alter register of copyrights subject to the prescribed conditions.

Anyone disputing the register may apply u/s 45 to have his copyright registered. Chapter XI deals with infringement of copyright. The next section

deals with civil remedies. Section 55 is to the effect that, where copyright has been infringed, the owner of the copyright shall, except as otherwise

provided by the Act, be entitled to all remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the

infringement of a right. Chapter XIII deals with offences, Chapter XIV, with appeals and Chapter XV, the final Chapter, with miscellaneous

provisions. It may be seen from the provisions which we have just now noticed that the only effect of registration is what is stated in Section 48, to

wit. that it shall be prima facie evidence of the particulars entered in the register. Hardly is there any indication in any of the provisions of the Act,

read individually or as a whole, to suggest that registration is a condition precedent to subsistence of copyright or acquition of ownership thereof.

Learned Counsel for the Appellant relied on Section 45 in particular and contended that the provision, namely, that the author or publisher or

the owner of copyright may make an application for registration, means that the registration is compulsory and that without registration there is no

copyright and no infringement thereof can be complained against. He also places reliance on Mishra Bandhu Karyalaya and Others Vs.

Shivratanlal Koshal, which, no doubt, supports his contention. In that case, the learned Judges of Madhya Pradesh High Court observed:

The Indian Copyright Act, 1914, had nowhere made any provision for the registration of copyrights. Under the Copyright Act, 1957, it appears

that under Sections 13 and 45 the registration of a 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 fully registered according to the provisions of the 1957 Act.

We fail to see anything in Sections 13 and 45 to justify this view. Section 13 does not speak about registration. As we nave already mentioned, it

only lists out the works in which copyright may subsist. It also indicates works in which no copyright can exist unless certain conditions are

satisfied. Section 45 is an enabling section. Anyone who is so minded may apply for registration. Section 45 does not go further. The only effect of

registration is that it serves as evidence of particulars entered, in the register. Just as Section 48 lays down a rule of evidence Section 45 does not

qualify Section 13 or Section 14 or even Section 15 of the Act and makes registration as a condition for the subsistence of copyright or acquisition

of ownership thereof Maharajan J., was of the view that the observations of the Madhya Pradesh High Court were obiter. Even so, the

observations do deserve due weight but, in our opinion, those observations are not justified by the language of Sections 13 and 45 referred to. The

view we are inclined to take that registration is but optional and provides a rule of evidence, is supported by Satsang and Another Vs. Kiron

Chandra Mukhopadhyay and Others, .

Learned Counsel for the Appellant referred us to Section 16. As we have mentioned already, it merely says that no person shall be entitled to

copyright or any similar right in any work whether published or unpublished, otherwise than under and in accordance with the Act. This is merely to

say that copyright is a creation of the statute. Unless the person who claims copyright can point out to Section 14 and then substantiate that he

comes thereunder, he fails to establish copyright. That is all the effect of Section 16.

The appeal fails and is dismissed. Costs in the appeal will be abide the result of the suit.