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Dharam Dutt Dhawan Vs. Ram Lal Suri and Sons and anr. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 164 of 1951
Judge
Reported inAIR1953P& H279
ActsCopyright Act, 1914 - Sections 5
AppellantDharam Dutt Dhawan
RespondentRam Lal Suri and Sons and anr.
Appellant Advocate A.N. Grover and; H.L. Sibal, Advs.
Respondent Advocate K.L. Gosain and; A.M. Suri, Advs.
DispositionAppeal dismissed
Cases ReferredMessager v. British Broadcasting Co. Ltd.
Excerpt:
.....5 'during the legal term of copyright' and the whole of clause 7 assigning the copyright of the work to the publishers for its legal term clearly shows that the agreement did not amount to an assignment, even partial, of the copyright to the publishers but only amounted to a license by the authors to the publishers to print, publish and sell copies of the work. the most important and interesting of the cases cited was a decision of the house of lords in the case -messager v. the facts in 'that case were that the appellant was the composer of the music of an opera called 'les petites michus' and in the year 1905 he entered into an agreement with george edwardes, a well-known english impressaris for the production of the opera in england. their lordships held that although throughout..........that even if the agreement only amounted to a license to the publishers to print and sell the work, the agreement could not be unilaterally revoked in the circumstances by dharanx datt dhawan. the result was that the two suits in which dharam datt dhawan was the plaintiff were dismissed and the publishers were granted a decree for injunction and rendition of accounts in the suit in which they were the plaintiffs.5. the terms of the agreement entered into between the authors and the publishers of the book at lahore, the original of which is exhibited as p. 1, read as follows : 'an agreement made this 21st day of december 1937 between l. ram lal suri, proprietor of the students' own agency and the law book agency booksellers and publishers anarkali street lahore (hereinafter called.....
Judgment:

Falshaw, J.

1. This judgment will deal with three appeals filed by Dharam Datt Dhawan, the respondent in each case being firm Ram Lal Suri and Sons, the appeals having arisen out of three suits which were consolidated and decided against the appellant by the learned District Judge at Delhi in which the appellant was the plaintiff in two of the suits and the defendant in the third.

2. Up to a point the facts are not in dispute. The appellant Dharam Dalt Dhawan and another man named Sheikh Mohammad Abdullah were the joint authors of a text book called the New Method Matriculation Geometry, and as long ago as 21-12-1937, the joint authors entered into an agreement at Lahore with Ram Lal Suri, proprietor of the respondent firm, for the publication of the said text book. This agreement apparently continued to work quite happily until the upheaval of 1947. Under the terms of the agreement the publishers went on publishing the book, of which nine editions had been issued up to the beginning of 1947, the book selling at Rs. 2/- per copy out of which one-quarter, namely eight annas, was paid as royalties and divided between the joint authors.

As a result of the upheaval Dharam Datt Dhawan and Ram Lal Suri both came to Delhi and it was after that that disputes arose between them regarding the publication of future editions of the Geometry text book. These disputes came to a head early in the year 1949 when on the 4th of January Dharam Datt Dhawan sent a notice to the publishers informing them that he had altogether revoked what he described as the license for publishing his book, while in reply the publishers asserted that under the terms of the agreement between the authors and the publishers the copyright in the work vested in the latter and they intended to publish another edition. About May 1949 apparently they actually produced a tenth edition and put it on sale. In the meantime apparently Dharam Datt Dhawan made arrangements with some other printers for publishing the work and he also put a new edition of it in the market. In both the rival editions only Dharam Datt Dhawan was shown as the author.

The first suit was instituted by Dharam Datt Dhawan on 18-4-1949, under the Copyright Act claiming that he was the author of the work and that he bad merely granted a license to the publishers to print and publish the book and that since he had subsequently, revoked the license, the publishers were not entitled to print or publish the book and accordingly an injunction restraining Messrs. Ram Lal Suri and Sons from printing, publishing or selling copies of the book was prayed for. The second suit was instituted by the publishers on the 17-6-1949 claiming that copyright in the disputed book had been partially assigned to them by the agreement of 21-12-1947, and that they were the owners of the copyright so far as printing and publishing of the book was concerned, and they therefore sought an injunction restraining Dharam Datt Dhawan from infringing their copyright by printing and publishing copies of the book and they also prayed for rendition of accounts regarding copies of the book already published and sold by Dharam Datt Dhawan.

The third suit was filed on 12-6-1950 by Dharam. Datt Dhawan supplementing his previous claim by asserting that now the defendant firm had actually printed, published and sold copies of the work and he also accordingly claimed rendition of accounts regarding these sales. It may incidentally be mentioned that each of the parties claimed to have acquired the interest of the co-author Sheikh Mohammad Abdullah in the copyright of the book, Dharam Datt Dhawan claiming that he was now the owner of the whole copyright because Sheikh Mohammad Abdullah's interest in it had been declared to be evacuee property and assigned to him by the Custodian, while the publishers claimed to have purchased Sheikh Mohammad Abdullah's interest for Rs. 750/- by the agreement of assignment dated 19-5-1949.

3. By agreement between the parties the learned District Judge consolidated the three suits and framed the following issues-

(1) What is the true interpretation of the agreement between the parties dated 21-12-1937, i.e. whether it was a mere license granted by the authors to the publishers, or whether it was a partial assignment of the copyright in favour of the publishers?

(2) Did the agreement mentioned above stand terminated on account of the notice by the plaintiff to the publishers dated 4-1-1949?

(3) Were Ram Lal and Sons entitled to publish the work in dispute, i.e. New Method Matriculation Geometry by D. D. Dhawan after the receipt of the notice dated 4-1-1949? If not, what is the effect?

(4) Have Ram Lal Suri and Sons acquired by transfer the copyright in the disputed work belonging to Mohammad Abdullah, coauthor of the book? If so, when and what is the effect?

(5) Has Dharam Datt plaintiff acquired thecopyright of Mohammad Abdullah in thedisputed work? If so, when and what is theeffect?

(6) Is Dharam Datt plaintiff in any mannerestopped from alleging that Ram Lal Suriand Sons are not part owners of the copyright in the disputed work?'

The learned District Judge found that neither Dharam Datt Dhaw.an nor Messrs Ram Lal Suri and Sons had proved acquisition of the interest of the co-author Mohammad Abdullah in copyright, and on the question of estoppel, which arose because in some litigation in which the two present opponents were jointly arrayed against some third party it had been stated in a notice sent on behalf of both of them that they were part owners in the copy-right, it was held that no estoppel arose in the circumstances and Dharam Datt Dhawan was at liberty to deny that the publishers were part owners of the copyright.

4. The main issues related to the interpretation of the agreement of 1937 and whether Dharam Datt Dhawan could validly terminate the agreement by his notice dated 4-1-1949. On these points the learned District Judge came to the conclusion that by the terms of the agreement the publishers were part owners of the copyright and at the same time found that even if the agreement only amounted to a license to the publishers to print and sell the work, the agreement could not be unilaterally revoked in the circumstances by Dharanx Datt Dhawan. The result was that the two suits in which Dharam Datt Dhawan was the plaintiff were dismissed and the publishers were granted a decree for injunction and rendition of accounts in the suit in which they were the plaintiffs.

5. The terms of the agreement entered into between the authors and the publishers of the book at Lahore, the original of which is exhibited as P. 1, read as follows : 'An agreement made this 21st day of December 1937 between L. Ram Lal Suri, Proprietor of the Students' Own Agency and the Law Book Agency booksellers and publishers Anarkali Street Lahore (hereinafter called the publishers) which term shall include the present members of the said firm and their respective heirs, executors, administrators or assigns of the first part and Dharam Datt Dhawan B. A. B. T. and Dh. Mohammad Abdullah B.A., their heirs, executors, administrators, or assigns (hereinafter called the author) of the second part.

Whereas the authors have conjointly prepared the work A New Method Matriculation Geometry and whereas the parties wish to enter into a formal agreement it is hereby mutually agreed as follows:

1. That the publishers undertake to bring out at their own cost the work mentioned above.

2. That the publishers undertake to Pay to the authors a royalty of twenty-one per cent, on the first edition and twentyfive per cent, on the subsequent editions the sale proceeds of the said work. The publishers further agree to pay to the authors the said royalty on all copies sold by the end of each calendar year. The payment will be made to each of the authors or to their heirs, representatives, assigns or nominees.

3. That the royalty account shall be submitted to the authors for verification b?fore payment is due.

4. The authors jointly and severally as the case may be shall from time to time revise the work and keep it up to date and when the first edition is about to run out they shall if they consider it necessary, deliver a revised edition to the publishers for print and publication and all subsequent editions shall be compiled and printed in the same manner.

5. The authors also hereby further agree that the publishing and selling rights of the work shall be vested in and remain with the publishers.

6. The author guarantees to the publishers that the said work is in no way whatever a violation of any existing copyright and that it contains nothing of a libellous or scandalous character, and that he will indemnify the publishers from all suits, claims, proceedings, damages, and costs which may be made, taken or incurred by or against them on the ground that the work is an infringement of copyright or contains anything libellous or scandalous.

8. The author undertakes to edit and revise all subsequent editions of the work that may be called for and should he refuse, neglect or be unable to do so for any reason or by reason of death, the expenses of revising and preparing each such further edition for press shall be paid by the publishers but be borne by the author.

9. In the event of any difference arising between the authors and publishers, the dispute will be referred to arbitration of two persons, one to be named by each party, or their umpire, in accordance with the provisions of the Arbitration Act.

10. If the publishers shall at the end of five years from date of issue of the work or at any time thereafter notify to the author that the demand for the work has ceased, then this agreement shall be considered as terminated and the right to print and publish the work shall revert to the author, and the publishers shall make over to the author all blocks, electrotype or stereo plates at half the cost of production.'

6. This agreement is on a printed form and would appear to embody the standard terms of contracts between Ram Lal Suri and the authors whose books he published, any modifications in this standard contract being made either by the addition of words in manuscript or by the crossing out of the existing printed matter. Great reliance is placed by the learned counsel for the appellant on the fact that certain parts of the printed contract had been deleted in the agreement between the parties. The first instance of this is Clause 5 in which the last printed words which read 'during the legal term of copyright have been deleted, and the second instance is the total deletion of the printed Clause 7 which reads : 'The copyright for the work shall belong to the publishers during the legal term of copyright and the authors also agree that they will not compile, edit or revise any similar work for any other publisher nor will he give his help and advise nor become party in any way to any similar publication during the existing term of copyright, and of the work are vested in and remain with the publishers and will not publish or permit to be published any abridgment of the said work. Similar work or 'similar publication' in this paragraph means a work or publication on the same subject for the same classes and for the same 'provinces of India as the work or publication under his agreement.'

7. In this case we are concerned with the simplest type of literary copyright, namely the right to publish and sell copies of the particular book, and in the case- of a simple text book on Geometry no complications regarding, dramatic or film rights can arise. These matters are governed by the English Copyright Act of 1911 which with slight modifications, was made applicable to India by Act 3 of 1914. According to the provisions of this Act the first owner of the copyright is the author and; assignment of copyright is dealt with in Sub-sections (2) and (3) of Section 5 as follows :

'(2) The owner of the copyright in any work, may assign the right, either wholly or partially, and either generally or subject to-limitation, to the United Kingdom or any self-governing dominion or other part of His Majesty's dominions to which this Act extends, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by license but no such assignment or grant shall be-valid unless it .is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorised agent.

* * * (3) Where, under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copyright, the assignee as respects the rights so assigned, and the assignor, as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and the provisions of this Act shall have effect accordingly.'

8. It is contended by the learned counsel for the appellant that the deletion by the parties of the words in Clause 5 'during the legal term of copyright' and the whole of Clause 7 assigning the copyright of the work to the publishers for its legal term clearly shows that the agreement did not amount to an assignment, even partial, of the copyright to the publishers but only amounted to a license by the authors to the publishers to print, publish and sell copies of the work.

On the other hand it was held by the learned District Judge that the fact that in the very first part of the agreement the parties bound' not only themselves but also their heirs, executors administrators and assigns was inconsistent with the agreement being a mere license, since a license is a personal matter between-the parties, and that even with the words deleted in Clause 5 the conditions that the publishing and selling rights of the work should be vested in and remain with the publishers were also inconsistent with a mere license and more suitable to an assignment. Finally he found that the last clause to the effect that on the termination of the agreement the right to print and publish shall revert to the author could not be reconciled with a mere license. He therefore concluded that the agreement amounted to a partial assignment of copyright In the sense that copyright was assigned by the authors to the publishers for a part of the term of copyright unless and until the agreement was terminated in accordance with the terms contained in Clause 10.

9. It does not seem to me that the cases cited by the learned counsel for the appellant were of much assistance, partly because they depended on their own facts, and partly because they are old cases relating to the law of copyright as it existed before the Act of 1911 by which apparently the conception of a partial assignment of copyright was first created. The most important and interesting of the cases cited was a decision of the House of Lords in the case -- 'Messager v. British Broadcasting Co. Ltd.', (1929) AC 151 (A). This case was actually cited on behalf of the respondent, but it seems to me that it might possibly have more properly been cited on behalf of the appellant. The facts in 'that case were that the appellant was the composer of the music of an opera called 'Les Petites Michus' and in the year 1905 he entered into an agreement with George Edwardes, a well-known English impressaris for the production of the opera in England. In the agreement the appellant had joined on the one side with the authors of the opera, and by the agreement they gave to Mr. George Edwardes the sole and exclusive right of representing or performing the play in the United Kingdom, Great Britain and Ireland, America, British Colonies and Dominions.

The agreement contained several clauses, but the most important point is that throughout M. Messager and his colleagues described themselves as the 'licensors' and Mr. George Edwardes as the 'licensee'. After the death of George Edwardes the benefit of the agreement was assigned by his executors to a company called George Edwardes (Daly's Theatre), Limited and by permission of this company the British Broadcasting Company, as it then was, broadcast a radio performance of the opera. A suit was brought by M. Messager against the British Broadcasting Company for an injunction restraining them from broadcasting the opera and for damages for infringement of copyright. In construing the agreement between Messager and George Edwardes Viscount Sumner described the agreement as a lamentable document. Their Lordships held that although throughout the agreement the terms 'licensors' and 'licensee' were used, upon the construction of the agreement it operated as an absolute assignment of the performing rights of the opera within the prescribed area and was not a mere license, and that it was not limited to representations on the stage of a theatre, and so the plaintiff's action failed.

As I indicated above, it seems to me that this decision might possibly have been used as an argument by the learned counsel for the appellant to meet the reliance placed by the learned District Judge, in coming to the conclusion that there was a partial assignment of copyright in the present case, on the language of the agreement we are now construing, particularly as regards its being between the parties' heirs, executors and administrators or assigns as well as the parties themselves, and the language of Clauses 5 and 10 since the effect of the decision of the House of Lords would seem to be that one has to look at the real meaning of an agreement rather than the particular, in that case unfortunate, choice of words of the parties.

10. It does, however, seem to me that if a partial assignment of copyright under the Act can be held to include an assignment for a fixed or fluid period of time as well as its more obvious meanings of assignment of separate rights such as film rights or stage rights in a work of literature, it must be held in the present case that the agreement amounted to a partial assignment and the terms under which the assignment could be terminated were contained in Clause 10. I cannot see why the term 'partial' in this context cannot be deemed to include an assignment for a period of time as well as an assignment of one particular aspect of the copyright or an assignment for a particular territorial area, & in the circumstances I am of opinion that the learned District Judge correctly decided this matter against the appellant.

11. I am also inclined to agree with the view of the learned District Judge that even if the present agreement only amounted to a licence to the publisher it could not be unilaterally terminated by the appellant in the manner he has chosen. It was argued on his behalf that as far as he was concerned he could terminate the agreement at any moment since Clause 10 which provided for the termination of the agreement did not give him any right to terminate the agreement but left the matter entirely at the discretion of the publisher. It does, however, seem to me that if at any period after the first five years of the agreement the publisher failed to publish and sell any copies of the work in question, the author would not be left altogether without a remedy, since obviously he would be entitled to ask the publisher to state his position under Clause 10 and if he refused to do so a number of steps could be open to the author. I do not, however, consider that it is necessary to express any very decided opinion on this aspect of the case, since in my opinion that appellant has failed on the main part of his case. I would accordingly dismiss all these three appeals with costs.

Kapur, J.

12. I agree.


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