Skip to content


Cherian P. Joseph Vs. K. Prabhakaran Nair - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 65 of 1966
Judge
Reported in1967CriLJ1517a
ActsCopyright Act, 1957 - Sections 14(1), 17, 51, 55 and 63; Code of Criminal Procedure (CrPC) , 1898 - Sections 367 and 417
AppellantCherian P. Joseph
RespondentK. Prabhakaran Nair
Appellant Advocate Mathew Muricken, Adv.
Respondent Advocate V. Nagappan Nair, Adv. and;State Prosecutor
DispositionAppeal dismissed
Excerpt:
- .....three other witnesses were examined. pws. 2 and 4 are two of the authors of the malayalam books exts. p-11 to p-20. they would say that these books were not the translations of exts. p-1 to p-10 according to them prior to their writing these books there was joint deliberation among the various authors at the instance of the complainant and the accused and it was decided to prepare books both in malayalam and english and the general ideas about the contents of the books were discussed and it was in pursuance of the decision taken there that they have prepared and published the malayalam books probably they were trying to justify their action. the complainant denied that there was any such discussion or agree merit and stated that the accused was his sales agent and as they had.....
Judgment:

P. Govinda Menon, J.

1. This appeal by special leave is against the Judgment of the Additional First Class Magistrate. Trivandrum, acquitting the respondent (accused) who was prosecuted for an offence under Section 63 of the Copyright Act, 1957 (shortly stated the Act) According to the complainant, he was the author of the books marked as Exts. P-1 to P-10 and published by the Educational Publications Syndicate, Trivandrum. It is alleged by the complainant that Exts. P-11 to P-20 books in Malayalam taken into custody from the accused are translations of his books that they were translated and kept for sale without his permission or knowledge and the accused by so doing has infringed his copyright in those books thereby committing an offence punishable under Section 63 of the Act

2. Besides the complainant three other witnesses were examined. Pws. 2 and 4 are two of the authors of the Malayalam books Exts. P-11 to P-20. They would say that these books were not the translations of Exts. P-1 to P-10 According to them prior to their writing these books there was joint deliberation among the various authors at the instance of the complainant and the accused and it was decided to prepare books both in Malayalam and English and the general ideas about the contents of the books were discussed and it was in pursuance of the decision taken there that they have prepared and published the Malayalam Books Probably they were trying to justify their action. The complainant denied that there was any such discussion or agree merit and stated that the accused was his sales agent and as they had fallen out he had got at Pws. 2, 4 and some others to translate his books, into Malayalam.

3. The accused when questioned in Court merely denied the commission of the offence. On the evidence produced before him the learned First Class Magistrate found that the offence was not made out. I will quote his finding in his own words: 'In these circumstances. I find it is rather difficult to hold that the copyright was vested with the complainant unreservedly and more so, to find that the accused has infringed the copyright of the complainant.' I am unable to understand what the learned Magistrate actually means by this. Learned Magistrate also found that the Malayalam books were not true translations of the English Books. In short the finding is that there is no infringement of the copyright The correctness of these findings is challenged in this appeal.

4. Under Section 17 of the Act the author of a work shall be the first owner of the copyright therein. Here in Exts. P-1 to P-10 the complainant is shown as the author of the literary works. This fact is not disputed He is, therefore, the author of the books.

5. What is copyright is stated in Section 14(1) of the Act. It says:

'(1) For the purposes of this Act, 'copyright' means the exclusive right, by virtue of, find subject to the provision of this Act--

(a) in the case of a literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely--

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

(ii) to publish the work;

(iii) to perform the work in public;

(iv) to produce, reproduce, perform or publish any translation of the work'

6. So Pw. 1 as the author has the exclusive right to publish, the translation and no other person has the right to translate the complainant's works

7. Then we come to Section 51 of the Act which deals with the question as to when a copyright shall be deemed to he infringed. Section 51 reads:

'Copyright in a work shall be deemed to be infringed-

(a) when any person, without a licence granted by the owner of the copyright or the Register of copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

* * * * (b) when any person-

(1) makes for sale or hire or sells or lets for hire or by way of trade displays or offersfor sale or hire, or

* * * *' Section 63 is the penal section which says:

'Any person who knowingly infringes or abets the infringement of-

(a) the copyright in a work, or

(b) any other right conferred by this Act, shall be punishable with imprisonment which may extend to one year or with fine or with both.'

8. In the light of these provisions we have to see whether Exts P-11 to P-20 are translations and a piratical reproduction of the complainant's books Exts P-1 to P-10.

9. As stated by Copinger on Copyright at page 118, 'what is protected is not original thought or information but expression of thought or information in some concrete form. Consequently it is only an infringement if the defendant has made unlawful use of the form in which the thought or information is expressed The defendant must, to be liable, have made substantial use of this form, he is not liable if he has taken from the work the essential idea, however, original, and expressed the idea in his own form or used the idea for his own purpose'

10. On a comparison of Exts. P-10 to P-20 with the complainant's books prim a facie it appears to me that they are substantially translations of Pw 1's books. It is a matter for the Court to compare them and find out whether they are translations. But what the learned Magistrate has done is to rely on the evidence of Pws. 2 and 4 who were the persons who had actually translated the complainant's hooks. Learned Magistrate says even according to the prosecution witnesses there is no consistent evidence to show that they were true translations of the complainant's books and so there is no conclusive proof that they were translations. I am informed that a civil suit is pending in respect of this very same matter where on a detailed scrutiny the Court will find out whether Exts. P-10 to P-20 were the translations of the complainant's books. So I do not want to say anything more at this stage.

11. The further question is whether the prosecution has brought home the offence under Section 63 of the Act against the accused. Section 63 of the Act postulates a knowledge on the part of the accused that the Malayalam translations were really piratical reproductions of the complainant's books. It is true that the possibilities are that he must have known but in a case of an appeal against acquittal, unless there is clear and conclusive proof of the knowledge the accused cannot be found guilty of the offence.

12. As already staled it has come out in evidence that Pw 1 has filed a civil suit in which these identical questions are being agitated and the suit is pending and if he succeeds he would be entitled to damages. So all things considered I do not think it is necessary in the interests of justice to interfere with the order of acquittal

The appeal is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //