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K.i. George and anr. Vs. C. Cheriyan and ors. - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Intellectual Property Rights
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2732 of 1989-I
Judge
Reported inAIR1986Ker12
ActsCopyright Act, 1957 - Sections 2, 54 and 62; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantK.i. George and anr.
RespondentC. Cheriyan and ors.
Appellant Advocate K.P. Dandapani,; Sumathi Dandapani,; Jaju Babu,;
Respondent Advocate P.K. Balasubramoniam, Adv.
DispositionRevision allowed
Excerpt:
intellectual property rights - jurisdiction - sections 2, 54 and 62 of copyright act, 1957 and section 9 of code of civil procedure, 1908 - revision petition challenging maintainability of suit before munsiff's court - under section 54 owner of copyright is exclusive licensee - plaintiff in munsiff's court claiming ownership of copyright - under section 62 every suit of infringement of copyright instituted in district court and ordinary civil court has no jurisdiction to try it - revision petition allowed. - - 1 and defendants 3 and 4 are impleaded in the suit in order to have an effective order against the violation of the agreement between the plaintiff and defendant 1. defendants 1 and 2 failed to comply with the conditions in the agreement although the plaintiff has complied with..........3 and 4 to this i. a. they raised the contention that the suit is one coming under chapter 12, copyright act, and as such the district court alone has jurisdiction todeal with questions raised in this suit. therefore, according to them, the suit is not maintainable before the munsiff's court.2. by the impugned order the munsiff's court has held that the munsiff's court has jurisdiction to try this case. defendants 3 and 4 are challenging this decision in this civil revision petition.3. the learned counsel for the revision petitioners placed reliance on certain clauses in document no. 1 and also on certain statements in the plaint in order to substantiate his contention that this is a suit coming under the copyright act. clauses 1 and 4 of the agreement dated 20th september, 1982 are.....
Judgment:
ORDER

K. John Mathew, J.

1. Defendants 3 and 4 are the revision petitioners. The plaintiff, who is respondent 1 herein, filed O. S. No, 556 of 1984 on the file of the Additional Munsif, Kottayam, with the following prayers :

'(i) Defendants 1 and 2 may be restrained by an order of injunction from supplying bromides to defendants 3 and 4 for publication in Malayalam to anybody other than the plaintiff.

(ii) Defendants 1 and 2 may be directed by an order of mandatory injunction to supply the remaining bromides including bromides Nos. 55, 56 and 57 to the plaintiff for publication in his Poonchola as before.

(iii) Defendants 3 and 4 may be restrained by an order of injunction from publishing any of the bromides of Tinkle Publications owned and edited by defendants 1 and 2 either in Balarama or any other similar publications allied to it in the Malayalam Language.

(iv) The defendants may be made liable for the entire costs of this suit and the plaintiff allowed to recover the same.

(v) Such other reliefs as the court may deemfit and proper in the circumstances of thecase-'

According to the plaintiff, the plaintiff and defendant 1 (respondent 2 herein) entered into an agreement on 20-9-1982, under which the right of publication of Tinkle picture stories was given to the plaintiff. Paragraph 4 of the plaint is as follows :

'As per the agreement defendants 1 and 2 agreed to supply the bromides of Tinkle every fortnightly regularly to the plaintiff for publishing the same in his children's magazine Poonchola. The right of publishing Tinkle picture stories in Malayalam language thus exclusively vests with the plaintiff and no other publication in Malayalam have any right whatsoever to receive the bromides of Tinkle and publish them in Malayalam.'

Along with the plaint the plaintiff filed I. A. No. 2454 of 1984 for an interim injunction restraining defendants 1 and 2 from supplying bromides and restraining defendants 3 and 4 from publishing the bromides of Tinkle in Balarama or outer publications allied to it in Malayalam language. Defendants 3 and 4 are the publisher and editor of another children's magazine. In the additional counter-affidavit filed by respondents 3 and 4 to this I. A. they raised the contention that the suit is one coming under Chapter 12, Copyright Act, and as such the District Court alone has jurisdiction todeal with questions raised in this suit. Therefore, according to them, the suit is not maintainable before the Munsiff's Court.

2. By the impugned order the Munsiff's Court has held that the Munsiff's Court has jurisdiction to try this case. Defendants 3 and 4 are challenging this decision in this civil revision petition.

3. The learned counsel for the revision petitioners placed reliance on certain clauses in document No. 1 and also on certain statements in the plaint in order to substantiate his contention that this is a suit coming under the Copyright Act. Clauses 1 and 4 of the Agreement dated 20th September, 1982 are as follows :

'1. We are pleased to offer you one-shot publication rights in respect of Tinkle in Malayalam, but the copyrights in respect of the Malayalam version will continue to vest with us.

x x x x x x x x x 4. We agree not to revise the fee for publications rights till issue No. 61 or till December, 1985, whichever is more.

Special emphasis was also given to the statement in para 4 of the plaint, which is already extracted in this order, in support of the contention that the plaintiff is claiming exclusive right to publish the pictures. According to the learned counsel for the revision petitioner, the plaintiff's case is that the right of publishing Tinkle picture stories in Malayalam language exclusiyely vests in the plaintiff. So much so what the plaintiff is claiming is an exclusive licence coming under the purview of Section 54(a), Copyright Act, 1957, hereinafter referred to as 'the Act'. Under Section 54 of the Act, the expression 'owner of copyright' shall include an exclusive licensee. Section 2(j) of the Act defines 'exclusive licence' as a licence which confers on the licensee or on the licensees and persons authorised by him, to the exclusion of all other persons including the owner of the copyright, any right comprised in the copyright in a work. Therefore, the contention is that, according to the plaint averments, the plaintiff is claiming as an owner of copyright and, therefore, under Section 62 of the Act, only the District Court has jurisdiction to try this suit.

4. According to the learned counsel for the plaintiff, respondent 1, the suit is based ona violation of contractual agreement evidenced by document No. 1 and defendants 3 and 4 are impleaded in the suit in order to have an effective order against the violation of the agreement between the plaintiff and defendant 1. Defendants 1 and 2 failed to comply with the conditions in the agreement although the plaintiff has complied with his part of the contract. Defendants 1 and 2 had no right to supply these materials to defendants 3 and 4 and therefore the suit is only on the basis of violation of a contractual agreement As such the suit is maintainable before the Munsiff's Court.

5. The learned Munsiff disposed of the petition in the following terms :

'In this case, it is by virtue of a contract which amounts to a consent on the part of defendants 1 and 2 that the petitioner began publication of Tinkle feature in Malayalam. The laws of copyright deal with only particular expression of idea and do not protect ideas. In the case of an agreement between author and . publishers, the most important point to be determined is whether any copyright is to be vested in the publisher or whether licence alone is intended. In the case of a licence which is a publishing agreement will normally be an exclusive licence the grant is subject to certain conditions. Here, it is by reason of violation of the terms of the agreement under which the petitioner is an exclusive licensee to publish the tinkle feature for a specific period that the right is given to defendants 3 and 4 to have the features published. Whether the features are published by the petitioner or defendant counter-petitioners 3 and 4, the copyright still vests with counter petitioners 1 and 2.'

Ultimately the court held that there is no infringement of copyright in this case and therefore the court has jurisdiction.

6. Section 14(1)(b) of the Act is as follows :

'15. Meaning of copyright. -- (1) For the purposes of this Act, 'copyright' means the exclusive right, virtue of, and subject to the provisions of this Act-

(a) xx xx xx

(b) In the case of an artistic work, to do orauthorise the doing of any of the followingacts, namely : --

(i) to reproduce the work in any material form;

XX XX XX'

Section 2(m) of the Act 'infringing copy' means in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film, if such reproduction, copy or record is made or imported in contravention of the provisions of the Act. Under Section 62 of the Act, every suit or other civil proceedings arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by the Act shall be instituted in the District Court having jurisdiction.

7. Admittedly defendants 3 and 4 are not parties to the agreement under which the plaintiff is claiming reliefs. As per the statement in para 4 of the plaint the plaintiff claims that the right of publishing Tinkle pictures in Malayalam language exclusively vests with the plaintiff. It is further stated that no other publication in Malayalam has any right whatsoever to receive the bromides of Tinkle and publish them in Malayalam. In other words, the plaintiff is claiming that he has an exclusive licence as defined in Section 2(j) of the Act. The further question is whether there is any infringement of the rights coming within Section 2(m) of the Act The learned counsel for the plaintiff pointed out that there will be infringement only if such reproduction is made in contravention of the provisions of the Act. Section 55 of the Act provides for civil remedies for infringement of copyright Section 51 of the Act shows when copyright is infringed. Copyright in a work shall be deemed to be infringed when any person does anything, the exclusive right to do which is by the Act Conferred upon the owner of the copyright, Without a licence granted by the owner of the copyright or the Registrar of Copyrights under the Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under the Act

8. From this it is clear that what the plaintiff is claiming in the suit is an exclusive right to publish the picture stories and that is why defendants 3 and 4 are also impleaded in the suit In this connection, I may refer to twopassages from Copinger and Skone James on Copyright, 12th Edn., at p. 67; para 175;

'ARTISTIC WORKS

Statutory definitions. Previously to the Copyright Act, 1911, the copyright in artistic works was the subject of various statutes which dealt separately with engravings; paintings, drawings, photographs, and works of sculpture. -Under the Act of 1911 these all fell under one compendious phrase, Section 1 conferring copyright upon 'every original artistic work'.

Para 546 :

'ARTISTIC.

The acts restricted by the copyright in an artistic work are reproducing the work in any material form; publishing the work; including the work in a television broadcast; and causing a television programme which includes the work to be transmitted to subscribers to a diffusion service.'

There is no doubt that the pictures in question come within the description as 'artistic works' as stated in the latter part of Para 175, i.e., irrespective of artistic quality, namely, paintings, sculptures, drawings, engravings and photographs will come within the terms of 'original artistic works'. The Act gives copyright to such works also. Then the question is whether the suit is really one for a breach of contract or whether the suit is one for violation of a copyright. Paras 3, 4 and 8 of the plaint throw some light on the plaintiff's case on this aspect. In para 8 the plaintiff says that defendants 1 and 2 have violated the terms of the agreement in collusion with defendants 3 and 4. The learned counsel for the plaintiff submitted that the licence granted to his client is not an assignment of copyright. In this connection the following passage in Halsbury's Laws of England, 4th Edn., para 880, appears to be relevant:

'A licence is not a partial assignment of copyright, it is merely leave to do something which would otherwise be unlawful. A licensee has, however, the right to make alterations except, in so far as his licence expressly or impliedly restricts that right. A licensee, unless he is an exclusive licensee, cannot sue for infringement of copyright unless he joins the copyright proprietor as co-plaintiff in theaction, and a purchaser in good faith and for value of the proprietor's interest without notice of a previous licence is unaffected by it. The licensee can, however, sue the assignor for damages for breach of contract if the latter does not protect his interests.

Where the doing of anything is authorised by the grantee of a licence or a person deriving title from the grantee, and it is within the terms or implied terms of the licence for him to authorise it, then, for the purposes of the Copyright Act, 1956, it is taken to be done with the licence of the grantor and of every other person, if any, upon whom the licence is binding.'

As is seen from the preamble of the Copyright Act, 1957 this is an Act to amend and consolidate the law relating to copyright. Substantially the provisions in the Indian Act are similar to the English Act, namely the U.K. Copyright Act, 1956.

9. Now that the plaintiff is claiming exclusive rights to the exclusion of all others to reproduce the pictures it would appear that such right will come within the definition of 'exclusive licence' as defined in the Act and not the violation of a term in a contract. As such the ordinary civil court has no jurisdiction to try such suit and only the District Court has jurisdiction under Section 62 of the Act.

10. Under these circumstances, I set aside the order of the lower court and direct that court to return the plaint to the plaintiff for presentation in the proper court.This civil revision petition is disposed of as above.

Issue carbon copy of this order to the counsel appearing for the parties, on the usual terms.


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