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Mary P. Marshall Vs. Ram NaraIn Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Propertry Rights
CourtAllahabad
Decided On
Reported inAIR1934All922
AppellantMary P. Marshall
RespondentRam NaraIn Lal and anr.
Cases ReferredFrederic Emerson v. Chas. Davies
Excerpt:
.....is entitled to the indirect as well as the direct fruits of his labour. ii cider section 1(2) copyright was defined as a sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, and was to include the right to produce any translation of the work as well as other matters with which we are not concerned in this case. 9. it was in this connexion that their lordships laid down that an abridgment of an author's work means a statement designed to be complete and accurate of the thoughts, opinions and ideas by him compressed therein, but set forth much more concisely in the compressed language of the abridger and that it requires learning, judgment, literary taste and skill requisite to compile properly and effectively an abridgment..........of professor marshall at that time. in 1912, the defendant, ram narain lal, purchased the supposed copyright of this digest from dr. king. by now professor marshall's book has gone into several editions, there being an edn. 8 of 1927, which was filed in this case. ram narain lal, defendant, reprinted this digest of 1908, and published it in 1926. it is in respect of this reprinting of the earlier edition of dr. king's digest that the present action has been brought.2. the defence was that dr. king's digest was a bona fide and fair abridgment of professor marshall's book and was protected under the law and that there had been no infringement of any copyright at all. it was also pleaded that the claim was barred by limitation because the infringement, if any, was committed more than three.....
Judgment:

Sulaiman, C.J.

1. This is a plaintiff's appeal arising out of a suit for damages and an injunction on the ground that the plaintiff's copyright has been infringed. The plaintiff is the widow of the late Professor Marshall, whose Treatise 'Principles of Economics' is a well known textbook. The Edn. 4, of that book was published in 1898 and the Edn. 5, was brought out in 1907. In 1908 Rev. Dr. King, the Principal of a College brought out a treatise which he called 'A Digest of Marshall's Principles of Economics.' This was printed and published by a press in Ajmere. No objection appears to have been taken on behalf of any agent of Professor Marshall at that time. In 1912, the defendant, Ram Narain Lal, purchased the supposed copyright of this Digest from Dr. King. By now Professor Marshall's book has gone into several editions, there being an Edn. 8 of 1927, which was filed in this case. Ram Narain Lal, defendant, reprinted this Digest of 1908, and published it in 1926. It is in respect of this reprinting of the earlier edition of Dr. King's Digest that the present action has been brought.

2. The defence was that Dr. King's Digest was a bona fide and fair abridgment of Professor Marshall's book and was protected under the law and that there had been no infringement of any copyright at all. It was also pleaded that the claim was barred by limitation because the infringement, if any, was committed more than three years before the suit. The learned District Judge who heard the case came to the conclusion that the claim must fail. He examined the Digest along with the original book and considered that in a sense it was an abridgment of the Principles of Economics, but it was something more condensed still and it was in his opinion more like a key to the book and a synopsis of it. He pointed out that the original book consisted of 858 closely printed pages including appendices, whereas the Digest consisted of only 77 pages and he also pointed out that the number of words in a page in the Digest were nearly half of those in the original book. The learned Judge thought that this Digest was intended to be a guide and not a substitute for the prescribed textbook and that it involved labour, time, knowledge of the subject and sound judgment in its preparation.

3. The learned Judge referred to various authorities, particularly a judgment of their Lordships of the Privy Council in Macmillan & Co. Ltd. v. Cooper 1924 P.C. 75. The learned Judge referred to the discussion of the subject in Copinger's 'Law of Copyright' and point, ed out that there was authority for the view that a fair abridgment in which intellectual effort was employed was not a piracy and that an abridgment which is a condensation of the views of the author adopting the same arrangement and containing an epitome of the work is distinguishable from a mere compilation consisting of selected extracts. He noted that Copinger in his book had pointed out that there was a tendency in later cases to depart from-the stringency of the earlier decisions and to recognize the principle that an author is entitled to the direct as well as indirect fruits of his labour, but as there was EO modern decision as to the rights of an abridger the learned Judge held that the decided cases permitted a fair abridgment of the work. Belying on the statement of the law in the Supplement to Halsbury's Laws of England of 1287 he held that the author of an original work could not prevent the publication of any fair and bona fide abridgment. The plea of limitation does not appear to have been pressed before him and he accordingly expressed no opinion on this question. The finding of the learned District Judge is challenged on behalf of the plaintiff in appeal.

4. It would be convenient to refer to Copingers's Law of Copyright (Edn. 6 1927), which gives in a condensed form the case law on the subject. For the view which we have taken of the state of the law in India it is not necessary to consider these English cases in any great detail. Copinger has pointed out on pp. 135 to 138, that in Dod Sley v. Kinnersley (1761) Amb 403, Howkworth v. Newbery (1774) Lofft 775, Butterworth v. Robinson (1801) 5 Yes 709, Sweet v. Benning (1855) 16 C.B. 459 and D'Almaine v. Boosey (1835) 1 T. & Ex. 288. it was held that a bona fide fair abridgment was permissible. The learned author also pointed out that in Dickens v. Lee (1884) 8 Jur 183, it was observed that the right to abridge the works of another was not recognized and so also in Tinsley v. Lacy (1861) 1 H & M 747, where a very unfavourable opinion was expressed in regard to the rights of an abridger. Lastly, in Weatherby v. International Horse Agency (1910) 2 Ch. 297, it was pointed out that an author is entitled to the indirect as well as the direct fruits of his labour. Copinger wound up this survey of the caae law with the opinion that it is probable that in future it would be held that abridgments of copyright works are no longer permissible.

5. It is clear to us that when we have a statutory enactment in India the decision based on the Common law rights in England are not binding upon us. It would however be necessary to briefly survey the Statutory law both in England and in India. The earliest Statute in England that we know of is 8 Anne (c. 90), under which an author of a book was allowed to have 'the sole liberty of printing and recanting such book.' In later Acts, particularly of 1835 and 1842, this right was confirmed. It was not till the Copyright Act of 1911 (1 and 2 Geo. V. c. 46) that a change in the phraseology was introduced. II cider Section 1(2) copyright was defined as

a sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever,

and was to include the right to produce any translation of the work as well as other matters with which we are not concerned in this case. There were some exceptions laid down in Section 2 which however did not expressly cover the case of an abridgment of the work.

6. These Acts were enforced in India; and apart from the earlier Acts we had Acts of 1836 and 1842. But in these Acts the sole liberty of the author was confined to the reprinting of his book. It was not till 1914 when the Copyright Act (3 of 1914) was passed that a similar change was introduced. Under Section 1(2) copyright is similarly defined as being the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever and also includes the production of translation, etc. It is therefore obvious that the expression, Sole right to produce the work or any substantial part thereof in any material form whatsoever,' has a much wider scope than the words 'sole liberty to reprint the book.' The earlier English cases noted above can easily be explained on the supposition, although this aspect does not seem to have been emphasized in Copinger's book that under the earlier Acts the monopoly of the author was eon-fined to the reprinting of the work which in its ordinary sense would not necessarily include a mere abridgment. It was accordingly held that a fair and bona fide abridgment which would not amount to a reprinting of the work was not an infringement of the copyright. But doubt does appear to have been thrown on this view in the later cases which however on facts were quite clear. In them either a whole story had been copied out or a whole list had been adopted. One may presume that it was in consequence of the observations made in the later cases that Parliament intervened and the Copyright Act of 1911, was enacted. Under that Act the position was made more secure for the author.

7. However that may be we are bound by the Statutory Enactments in force in India. The position here is that up to 1914 an author had the sole liberty of reprinting his book. It would therefore appear prima facie that an abridgment of a work would not upto that time be an infringement of a copyright, but of course such an abridgment must be a fair and bona fide one and must not amount to a reprinting of the work of the author. We shall show presently that in the case decided by their Lordships of the Privy Council the point for consideration was quite a different one, but there is undoubtedly the fact that their Lordships quoted with approval passages from Copinger's book which had proceeded on the assumption that there was a right to make a. fair abridgment of a work without infringing the author's copyright. So long as the abridgment was a fair one and did not amount substantially to a reprinting of the work itself there was nothing under the old Copyright Act which would give a right to the author to claim damages or injunction. We must accordingly hold that in the year 1908, when Dr. King brought out his Digest of Professor Marshall's Principles of Economics there was no infringement committed by him of any copyright of Professor Marshall. Indeed the copyright of Professor Marshall was confined to the sole liberty of reprinting or reproducing the book and did not include a sole right to prepare an abridgment of his book. However unsatisfactory this view might have been from the point of view of an author there seems to be no doubt that in view of the language of the Act then in force and the view which prevailed in England in other cases there is no option for us, but to hold that this was the law at that time.

8. The position seems now to have been considerably changed in view of the wider language employed by the legislature in the Act of 1914. We are not now so much concerned with the amount of skill, labour and intelligence bestowed upon an abridgment or synopsis nor are we to see so much whether it is a bona fide and fair abridgment of the original work. The test is whether or not it is a reproduction of the work or a substantial part of it in any material form whatsoever. It may be that up to a certain limit when an abridgment is no more than a mere short synopsis or index to other work there would be no infringement. On the other hand, when an abridgment is on such an extensive scale as to amount to a reproduction of a substantial part of the original work in a material form it would undoubtedly be an infringement of the copyright. In this connexion it is necessary for us to consider whether the case decided by their Lordships of the Privy Council in Macmillan & Co. Ltd. v. Cooper 1924 P.C. 75, governs this case. In that case Sir Thomas North had brought out a translation of Plutarch's Life of Alexander. One Mr. Parr brought out selections from this translation after editing the same. Another book which was also a selection of North's Selection was brought out by Mr. Darby with Introduction, Marginal Notes and a Summary. There was no copyright in North's Translation. The plaintiffs' first book consisted of a number of detached passages from North's Translation in addition to other printed matter. The defendant's book equally contained selections from the same Translation with other notes. On. p. 476 their Lordships observed that the primary question to be determined was whether the plaintiffs-appellants were entitled to a copyright in the text of their book and in the notes attached to it which the latter, the defendants-respondents, had in many instances in effect copied. Their Lordships therefore had to consider whether there was any copyright in the book of the plaintiffs which had been infringed by the defendants' book. In order to consider this their Lordships pointed out what an equitable abridgment would be and expressed the opinion that the books of both the parties had been wrongly styled as abridgments and in the true sense of that word this was an absolute misnomer.

9. It was in this connexion that their Lordships laid down that an abridgment of an author's work means a statement designed to be complete and accurate of the thoughts, opinions and ideas by him compressed therein, but set forth much more concisely in the compressed language of the abridger and that it requires learning, judgment, literary taste and skill requisite to compile properly and effectively an abridgment deserving that name (476). Their Lordships then quoted passages from Copinger's Law of Copyright (from p. 39 of 1904 edition and from p. 64 of 1915 edition). But these passages were in connexion with the question as to whether a copyright exists in abridgment. That was the point for their Lordships' consideration. Two more passages from the same book were quoted but they were also in illustration of the same point whether a copyright in an abridgment could exist. As pointed out above at least one of these passages in Copinger's book was taken from the place where he had also remarked that a fair abridgment is permissible. But in the 1915 edition there was equally the opinion expressed by Copinger at p. 138 that it was considered probable that it would be held that abridgments of copyright works are no longer permissible. Their Lordships did not comment on this passage at all. It is therefore quite clear that their Lordships were dealing solely with the question whether there was a copyright in the book belonging to the plaintiff which in their Lordships' opinion was not a fair abridgment at all. There was no question whether the plaintiffs' book in itself was an infringement of Sir Thomas North's Translation. That it was not so was quite obvious to their Lordships. We may also point out that their Lordships did not concur in view of the Bombay High Court that reprint of passages selected from the work of an author can never be entitled to copyright and that it may well be that in selecting and combining for the use of Schools or Universities passages of scientific works in which the lines of reasoning are closely knit and labour, scientific knowledge, sound judgment and literary skill are expended, in which case copyright might well be acquired for the print of the selected passages. Their Lordships discussed at length Section 1(1), Copyright Act of 1911, and also quoted with approval the opening words of Lord Halsbury in Walter v. Lane (1900) A.C. 539, that it would be regrettable if the law permitted a man to make a profit and to appropriate to himself what had been produced by the labour, skill and capital of another and also approved of the observation made by Frederic Emerson v. Chas. Davies 2 Story 768, and then laid down a third test on p. 497 that:

To constitute piracy of a copyright it must be shown that the original has been either substantially copied or so imitated as to be a mere evasion of the copyright.

10. The rest of the judgment deals with the question whether a copyright could exist in a book of that character. We therefore think that the question which their Lordships were considering and which they decided was as to whether there was a copyright in the plaintiff's book or not. Their Lordships did not feel called upon to decide in what circumstances there would be an infringement of such a copyright if it had existed. The only reference to Sub-section 2, Section 1 which defines the meaning of copyright is at p. 478 where their Lordships do not quote it in full and do not lay down what is meant by a reproduction of a substantial part of a book. In these circumstances we are inclined to think that an abridgment of a book after the coining into force of Act 3 of 1914 may amount to a reproduction of a substantial part of a book and would therefore be prohibited. In the present case we are constrained to hold that the learned Judge has taken a rather lenient view of the cage. Dr. King's Digest of Marshall's Principles of Economics is certainly more than a mere synopsis. Although it is called a 'synopsis' in the preface it is called a 'digest' on the title page. Not only the name of the original book is borrowed but the exact plan has been adopted. All the books, parts and chapters have been taken in the same order and the actual wording of the headings have been exactly reproduced. The entire arrangement and plan of the work including the views of the author, the principal illustrations by him, the method of his treatment of the subject and his analysis of the principles of economics are all borrowed, copied out and reproduced. Practically every paragraph has been summarised and an abstract of every point on every page has been made and the Digest is nothing short of an abstract of Professor Marshall's Principles of Economics and contains a gist and purport of all that the learned author had written. There is no doubt that it was utilising the product of his labour, judgment and intelligence and bringing out the same in the form of an abstract though naturally a condensed one. Under the law as it exists now we could have had no hesitation in holding that a book of this kind does infringe the copyright of the author. It would be grossly unfair and unjust to an author if other people should be allowed to bring out digests or abstracts of his book and sell them in the market at a cheaper price and thus deprive him of the fruits of his labour. There may, of course, be cases where a brief synopsis or index may not amount to a reproduction of any substantial part of a work. But where the whole thing has been brought out in a compressed form which is meant to be some sort of a substitute for the old book, though really a cram book may well amount to an infringement. We would) therefore have been only too glad to help the plaintiff in this case and give her a decree for an injunction and damages if it had been a case of infringement of a copyright under the existing Act.

11. But as pointed out above the main difficulty in the way of the plaintiff is that Dr. King brought out his Digest in 1908, and in view of the law which then existed his copyright was con-fined to the sole liberty of reprinting, the book. Unfortunately during that period an author had not the sole right of bringing out an abridged edition on a digest of his book. We are therefore compelled to hold that Dr. King did not infringe any copyright in 1908 when he brought out the disputed digest. The digest lawfully became his property and he was entitled to dispose of it. The title to it was acquired by Ram Narain Lal in 1912 before the present Act came into force. In reprinting the old edition of 1908, Ram Narain Lal, defendant, has now reprinted his own book which had lawfully become his property and has not therefore infringed the copyright of the plaintiff. The book of the plaintiff's husband has gone through various editions and has now been considerably enlarged and the Edn. 8, has been brought out. It cannot be suggested that the defendant's book which is challenged by the plaintiff is an abridgment of the Edn. 8, of Professor Marshall's book. Indeed, it does not contain any abstract of the various chapters which have been added in the later editions, and the headings of the chapters are also not identical with those in the last edition, having been borrowed from the earlier editions. It is also clear that in the Digest at various places there are references to pages of the 4th or 5th edition and no references to the later editions. The defendant has therefore done nothing more than reprinted his own book to which he had absolutely a good right and title in 1912.

12. Under Section 24, Copyright Act, of 1914 no new right was conferred on an author in respect of an existing book. 'Whatever copyright he had at the commencement of the Act was continued in his favour. It follows that when Professor Marshall had not a copyright as far as the abridgment of his treatise was concerned before the Act of 1914, no such right subsists after that Act. The defendant has therefore not infringed any copyright at all. As regards the plea of limitation we are of opinion that it has no force. Under the Copyright Act, an infringement takes place not only when a book is reprinted, but also when a book in respect of which a copyright exists is sold. It is therefore clear that there is a fresh cause of action on the sale of every book. Even if the right had first been infringed in 1908 the claim cannot be barred by time. We must accordingly uphold the decree of the Court below, but in view of the fact that the learned Judge did not dispose of the case on the view which we have taken of the matter we order that the parties should bear their own costs of the appeal. There is deficiency of Rs. 4-14-0 due by the respondents on account of the translation, and printing charges. No decree will be prepared until this amount has been made good.


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