V. Balakrishna Eradi, J.
1. This appeal arises out of a suit filed by the appellant herein in the District Court, Alleppey, as O.S. No. 2 of 1961, for recovery of a sum of Rs. 10.000 from the defendants (respondents herein) by way of damages for alleged infringement of copyright.
2. Defendant 1 is a private limited company doing business in printing, publishing and selling books and defendant 2 is the manager of the aforesaid, company. Defendant 3 is the wife of defendant 2. One N. H. Haran had been shown as defendant 4 for the reason that the publication complained of had been made by defendant 1 mentioning his name as the author, but daring the course of the trial it was admitted on all hands before the lower Court that the aforesaid name was only a pseudonym used by defendant 2 and did not relate to any real person. Accordingly, relief was pressed for only as against defendants 1 to 3 and th y alone have been impleaded as respondents 1 to 3 in this appeal.
3. The plaintiff's case is that on 7 January 1955 an agreement was entered into between himself and defendant 1 company acting through defendant 2 where under the plaintiff was entrusted with the work of rewriting Haran's Bnglish-Malayalam Dictionary for the purpose of publishing a revised second edition of the original work. It was agreed that the plaintiff would be paid remuneration at the rate of Re. 1 per page in respect of the matter so rewritten by him, the aforesaid rate being inclusive of charges for first-proofreading. At the time when this agreement was entered into, the first 176 pages of the proposed revised edition had already been prepared by one P. T. Nair. The defendants had previously entered into an arrangement with P. T. Nair for the preparation of the revised edition, but after rewriting the aforesaid portion he discontinued the work since he had to go away to Bombay. The contract with the plaintiff was for rewriting the remaining portion of the dictionary and according to the plaintiff, he performed his part of the contract by rewriting the book in two volumes consisting of more than 1,500 pages in the aggregate. It is further stated in the plaint that while the work was in progress the plaintiff joined the Law College, Ernakulam for the B.L. Degree course and therefore found it difficult to carry on the work of proofreading which also he had undertaken to do under the contract. The agreement was, therefore, varied by consent of parties and it was decided to deduct Rs. 1-4-0 for every forme of eight pages from out of the remuneration payable to the plaintiff. The plaintiff further states that whereas the revised and rewritten edition should have normally contained a statement that it had been revised and rewritten by the plaintiff who had done the work, he was surprised to see a copy of the first volume of the second edition displayed for sale at a bookseller's shop in Ernakulam containing a statement that the revision and rewriting had been done by 'Haran.' The plaintiff states that subsequently the second volume has also been similarly published and that the publication of both volumes has been so done by defendant 1. Both the volumes contain a further statement that the copyright in respect of them vests in defendant 3. The plaintiff states that he is the author of the book as revised and rewritten, except in respect of the first 176 pages and that the copyright vests in him. His name ought to have been mentioned in the published work as its author, but instead the books have been published with a false statement that they had been revised and rewritten by Haran and that the copyright vests in defendant 3. The plaintiff alleges that the defendants in so printing, publishing and selling: the dictionary had committed a clear infringement of the plaintiff's copyright in the work and that the plaintiff is, therefore, entitled to get by way of damages the sum of Rs. 10,000 which is only a very modest estimate of the illegal profits earned by the defendants by reason of their wrongful act.
4. Defendant 1 company contended that it came into existence only on 17 February 1955 and that there was no agreement entered into as between the plaintiff and the company as alleged in the plaint. According to defendant 1, defendant 2 had no authority whatever to enter into any agreement on behalf of the company and that, therefore, the agreement pleaded by the plaintiff is not binding on defendant 1. It is further pleaded by defendant 1 that defendant 2 is an author and several books of his had been printed and published by defendant 1. The second edition of the dictionary was entrusted by defendant 2 to defendant 1 company for printing and publishing and it was as per such arrangement with defendant 2 that defendant 1 printed and published the work. To the best of the information and belief of defendant 1, defendant 2 was the author of the dictionary and the copyright in respect thereof vested in defendant 3. The plaintiff's claim that he is the author of the work and owner of the copyright is not admitted by defendant 1. It is finally contended that the printing, publication and sale of the revised dictionary by defendant 1 have not in any manner infringed the copyright of the plaintiff and the plaintiff has not been subjected to any legal injury in respect of which the claim for damages can be sustained.
5. Defendant 2 contended that the plaintiff was in his employment under a contract of service and that the work of revising and rewriting the dictionary was done by the plaintiff only in the course of such employment. The plaintiff has, therefore, no copyright in respect of the work. It is further stated by defendant 2 that he is the real author of the original work ' Haran's English-Malayalam Dictionary,' the name ' Haran' being a pseudonym adopted by him. Hence, the copyright in the work belonged to him and he had transferred it to his wife, defendant 3. Defendant 2 wanted to rewrite, re-edit and publish, the said dictionary and had collected the necessary books and materials for the purpose. But since his onerous duties as manager of the Vidyarambham Press did not allow him sufficient time to devote to the work he had arranged with a friend of his, one P. T. Nair, to assist him in the work. Accordingly P. T, Nair had entered into an agreement with defendant 2 to rewrite the dictionary on a remuneration of Rs. 400, But after he had finished rewriting only 176 pages he had to go away to Bombay abandoning the work. Thereafter, the plaintiff's offer that he would do the rest of the rewriting and also attend to the proofreading was accepted by defendant 2 and an agreement in writing was entered into with the plaintiff on 7 January 1955 whereunder the plaintiff was entrusted with the work of rewriting the rest of the dictionary so that the entire dictionary should not exceed 1,500 printed pages crown octavo size, the remuneration being fixed at the rate of Re, 1 per printed page. The necessary materials collected by defendant 2 were handed over to the plaintiff to enable him to proceed with the work, The plaintiff used to hand over tie matter prepared by him from time to time to defendant 2 and receive the remuneration in instalments. On 16 June 1956 another agreement was entered into by the plaintiff in view of his representation that he could not find time for proofreading; under this the rate of remuneration was reduced to Rs. 6-4-0 for every eight printed pages. According to defendant 2, the matter handed over by the plaintiff contained innumerable mistakes and some portions were mere verbatim reproduction from another dictionary by Tobias Zacharias, with the result that defendant 2 had to make the necessary corrections through one Shan-mugham Chettiar whom he had engaged as proofreader. The plaintiff was also trying to increase number of pages by adding unnecessary matter in spite of instructions given by defendant 2 and the latter had to cut out and omit a lot of unnecessary matter. According to defendant 2, the plaintiff was thus only an employee under him who did the work in the course of his employment for remuneration under a contract of service subject to the directions of defendant 2. The matter prepared by the plaintiff was not intended to be published as it was, but was subject to further corrections, modifications and approval by defendant 2 and the publication had been done only after effecting such corrections and modifications. The plaintiff had no copyright in respect of the revised edition and the copyright in the original work as well as in the revised edition was with defendant 2 who had transferred it to defendant 3. It is contended that the plaintiff, who had merely done some portion of the work in preparing the matter for bringing out the second edition as described above, subject to the eontrol and directions of defendant 2, can in no sense be regarded as the author of the work. The statement contained in the publication that the copyright, vests in defendant 3 is perfeotly correct. The plaintiff is not entitled to have his name mentioned in the book as the author of the revised edition and the omission to mention his name does not constitute an infringement of any legal right of the plaintiff. Defendant 2 was not bound by law or by agreement to mention in the dictionary the name of the person who had been engaged by him under a contract of service to revise and rewrite the original work. It is further contended by defendant 2 that even assuming that the plaintiff had any copyright in respect of the revised dictionary, the plaintiff had by his conduct in accepting remuneration for the work done and by handing over the work to the defendants for printing and publishing impliedly assigned such copyright to defendant 2 or impliedly agreed that defendant 2 shall be entitled to the copyright. It is finally contended by defendant 2 that the plaintiff having no copyright whatever in respect of the revised edition of the dictionary has no cause of action to claim any damages from the defendants and that in any event the damages claimed are grossly exaggerated and excessive.
6. The lower Court found that even though it is clear from the evidence that it was the plaintiff who prepared the matter for the second edition of the dictionary, except in respect of the first 176 pages, and that the corrections made by defendant 2 through D.W. 3 in the manuscript prepared by the plaintiff were only to a negligible extent, the copyright in respect of the revised edition consisting of the two volumes Exs. D. 4 and D. 5 vested in defendant 2 and not in the plaintiff. It further found that defendant 2 had validly transferred such copyright in favour of defendant 3 by virtue of the statement to that effect contained in Exs. D. 4 and D. 5. There is a good deal of discussion in the judgment of the lower Court on the question whether the contract entered into by the plaintiff was binding on defendant 1 company, and it has recorded the finding that the parties to the contract were the plaintiff and defendant 2 and that the agreement was not binding on defendant 1 company. The lower Court has also expressed the view that even if the plaintiff is to be regarded as having been the owner of the copyright in respect of the revised edition, the plaintiff has given the defendants an exclusive licence to print and publish the work and is, therefore, estopped from contending that there had been an infringement of his copyright by reason of the publication made by the defendants. In view of its holding against the plaintiff on the main issues arising in the suit, the lower Court did not consider it necessary to record any finding on the question of quantum of damages. It accordingly held that the plaintiff had no cause of action against the defendants and dismissed the suit with costs. Hence, this appeal by the plaintiff.
7. The learned counsel appearing for the appellant has canvassed the correctness of the aforesaid findings entered against his client by the Court below. It is contended by him that the lower Court has gone wrong in holding that the plaintiff was employed under defendant 2 under a contract of service and that the preparation of the manuscript of the revised edition of the dictionry was done by him in the course of such employment. The arrangement entered into by the plaintiff with defendants 1 and 2 was only a contract for service, the plaintiff being in the position of an independent contractor. It is further urged by him that neither defendant 2 nor D.W. 3 can be regarded as a joint author of the revised dictionary, even if it is to be assumed that they have made any corrections in the manuscript sent to the defendants by the plaintiff. Even though the work consisted only of revising and enlarging an existing original publication, counsel contends that the person who has done the work of such revision and rewriting is in law the author of the revised work and is entitled to copyright in respect of the same. There was no kind of agreement either express or implied where under the plaintiff had either surrendered or assigned to the defendants his copyright in respect of the revised work, nor had the plaintiff consented to the revised book being published showing the name of Haran as author. Defendants 1 and 2 were bound in law to mention the plaintiff's name as the author of the revised edition and in any event there was an infringement of the plaintiff's copyright by reason of the mention of the name of Haran as author of the revised edition and of defendant 3 as the owner of the copyright. No exclusive licence to print or publish had been given to the defendants by the plaintiff and in any event, even the grant of such licence would not constitute an assignment of the plaintiff's copyright. Counsel submitted that the action notbeing founded on any breach of contract, nothing really turns on the question as to whether the contract entered into by the plaintiff was with defendant 2 alone or whether defendant 1 company was also bound by it and that the elaborate discussion on this point by the trial Court was totally unnecessary. It is contended that this unnecessary discussion and the finding entered by the Court below that defendant 1 company was not bound by the contract, have influenced to a large extent even its conclusion on the other material issues in the case and that this has seriously prejudiced the plaintiff. So ran the arguments of the learned counsel for the appellant.
8. It cannot be doubted that even when a literary work is revised and rewritten the copyright in respect of such revised work vests ordinarily in the author thereof, that is, in the person who has done the work of revising and rewriting. As found by the Court below, it is clear from the evidence adduced in the case that it was the plaintiff who prepared the matter for the second edition of ' Haran's English-Malayalam Dictionary,' except in respect of the first 176 pages. Even though defendant 2 has put forward a case that he had supplied all the materials for the preparation of this revised work and that what the plaintiff did was really in the nature of mere clerical work, he has not been able to substantiate this plea, and it has only to be rejected. It has come out in the evidence that the only educational qualification possessed by defendant 2 is that he had studied up to Standard VI in a Malayalam school. He has candidly admitted that he cannot give answers in English to questions put to him. It is therefore absolutely unlikely that he would have been in a position to give any substantial guidance or directions to the plaintiff in the matter of preparation of the English-Malayalam Dictionary. All that defendant 2 (D. W. 1) states in his chief-examination in regard to this is that he furnished the plaintiff with the original edition of Haran's Dictionary and also copies of the Chambers 20th Century Dictionary and an English-Malayalam Dictionary published by Tobias Zacharias. Besides these, defendant 2 had supplied the plaintiff only the requisite paper and other writing materials. In these circumstances, it has to be held that the plaintiff is the author of the revised dictionary except with respect to the first 176 pages.
9. The next question that arises for consideration is whether the plaintiff can be said to have been employed by defendant 2 or by defendants 1 and 2 under a contract of service and whether the preparation of the revised work had been done in the course of such employment. If the author of a work was in the employment of some other person under a contract of service and the work was done by him in the course of his employment by that person, the person by whom the author was employed, is, in the absence of any agreement to the contrary, the first owner of the copyright. As pointed out in Halsbury's Laws of England, 3rd Edn., Vol. VIII, at p. 406,
A contract of service is not the same thing as a contract for services, the distinction being the same as that between a servant and an independent contractor ; a servant is a person who is subject to the commands of his master as to the manner in which he shall work. The existence of direct control by the employer, the degree of independence on the part of the person who renders services, and the place where the service is rendered, are all matters to be considered in determining whether there is a contract of service.
The meaning of the expression ' contract of service ' came up for consideration before the Court of Appeal in England in Simmons v. Health Lundry Co. (1910) 1 K.B. 543, a case decided under the Workmen's Compensation Act of England, 6 Edw. 7 0. 58 where a similar expression was to be found. Buckley, L.J., held:
It is not, of course, every contract under which services are rendered that can be described as a contract of service. If I take a railway ticket, the company enters into a contract with me to render me service, but there is no contract of service and the railway company is not my servant. A contract of service is one which necessarily involves the existence of a servant ... To distinguish between an independent contractor and a servant the test is. says Compton, J., in Sadler v. Henlock 4 E. & B. 570 at 578 whether the employer retains the power of controlling the work.... But, broadly stated, a contract of service does import that there exists in the person serving under the contract an obligation to obey the orders of the person served. A person employed to exercise his skill may or may not be a servant ....The question to to answered is: Was he employed as a workman or was he employed as a skilled adviser I do not know whether it is possible to approach more closely to an answer to the question as to what is a contract of service under this Act than to say that in each case the question to be asked is what was the man employed to do : was he employed upon the terms that he should, within the scope of his employment, obey his master's orders, or was he employed to exercise his skill and achieve an indicated result in such manner as in his judgment was most likely to ensure success Was his contract a contract of service within the meaning which an ordinary person would give to the words Was it contract under which he would be appropriately described as the servant of the employer.
Fletcher Moulton, L.J., stated the legal position thus:
The greater the amount of direct control exercised over the person rendering the service by the person contracting for them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional service and that the contract is not one of service. The place where the services are rendered, i.e., whether at the residence of the person rendering the services or not, will also be an element in deciding the case but is not in my opinion decisive, nor is the question whether the services are rendered to a person in the way of business or to a parent in respect of his children.
This interpretation of the expression ' contract of service ' has been applied by the Courts in England in construing the identical words occurring in the Copyright Act, 1911. See University of London Press, Ltd. v. University Tutorial Press, Ltd. (1916) 2 Chancery 601,
10. In the case last mentioned, (1916) 2 Chancery 601, a question arose as to whether certain professors who had been appointed as examiners by the Senate of the University of London for the matriculation examination for the purpose of setting the examination papers for September 1915 and January 1916 could be said to have been employed under a contract of service with the university. The examiners were not on the staff of the university. They were employed, for the particular examinations for which they were appointed, to prepare the examination papers on the subject in respect of which they were respectively appointed. The papers were prepared in the examiners' own time. They were free, subject to a syllabus and having regard to the knowledge required from the students, to choose their own questions. They were paid a lump sum as remuneration. They were not bound to give their services exclusively to the London University. In these circumstances, Peterson, J., held at pp. 611 and 612:
In the present case, the examiner was employed to prepare the papers on the subject in respect of which he was elected or appointed examiner. He had to set papers for September 1915 and January and June 1916, and his duty also comprised the perusal of the students' answers, and the consideration of the marks to be awarded to the answers. For this he was to be paid a lump sum. He was free to prepare his questions at his convenience so long as they were ready by the time appointed for the examination, and it was left to his skill and judgment to decide what questions should be asked, having regard to the syllabus, the book-work, and the standard of knowledge to be expected at the matriculation examination. It is true that the university issued instructions to examiners for the conduct of the examination, but these instructions are only regulations framed with a view to secaring accuracy in the system of marking. Professor Lodge and Mr. Jackson were regularly employed in other educational establishments and were not part of the staff of the London University, and it was not suggested that the other examiners were on the staff of the university. In my judgment, it is impossible to say that the examiner in such circumstances can be appropriately described as the servant of the university, or that he prepared these papers under a contract of service.
In the case before me, apart from the mere interested assertion by defendant 2 in his testimony as D.W. 1 that he was giving instructions to the plaintiff from time to time as to the manner in which the work was to be performed, there is no acceptable evidence whatever to show that either defendant 2 or defendant 1 company was exercising any direct control over the plaintiff in regard to the execution of the work entrusted to him. The mere specification of the approximate number of pages that the revised work should not exceed 1,500 pages, crown octavo size, and a subsequent modification of the aforesaid instruction regarding the size of the revised edition would not constitute the exercise of sufficient control over the execution of the work so as to spell out a contract of service. Excepting for these instructions relating to the size of the revised edition and the period within which the work should be completed, it was left entirely to the plaintiff to exercise his skill and achieve the indicated result in such manner as in his judgment was most likely to ensure success. It has also to be remembered that the plaintiff was during most of the relevant period a student in the Law College at Ernakulam and he was doing the work of revising and rewriting the dictionary from Ernakulam at his convenience as and when he could spare time.
11. Reliance was placed by the learned counsel for the appellant on Ex. P. 9, a letter sent by the plaintiff to defendant 2 on 23 November 1956, and it is argued that there is clear indication contained therein that in the preparation of the revised work the plaintiff was being subjected to regular control by defendant 2. I am unable to agree with this contention. Exhibit P. 9 is the reply sent by the plaintiff to the letter Ex. P, 8 sent to him by defendant 2 wherein defendant 2 had mentioned that in the manuscript relating to the part of the dictionary beginning from the letter ' S ' there was a surplus of Malayalam words that a portion thereof required to be omitted. In Ex. P. 9 the plaintiff protested against this proposal alleging that it was a device for depriving him of his legitimate remuneration by curtailing the number of pages. He also asserted that no correction or deletion of any portion of the manuscript should be carried out, except in consultation with him. This correspondence only discloses that by the time the work was drawing to a close defendant 2 had a feeling that the plaintiff was deliberately attempting to increase the number of pages in order to earn more remuneration and proposed a deletion of some portion from the manuscript, but that this suggestion was strenuously opposed by the plaintiff. What is significant is that far from conceding any right to defendant 2 to interfere with the work as prepared by him, the plaintiff has categorically asserted in Ex. P. 9 that no correction should be effected nor any omissions made from the manuscript without his being consulted on the matter. Exhibit P. 9 would not, in my opinion, help the respondents to show that under the arrangement between the parties defendant 2 had retained to himself the necessary degree of control over the execution of the work so as to render it a contract of service. It is in this context that the educational attainments and literary equipment of defendant 2 become particularly relevant. As already observed by me, it is not at all probable that defendant 2 with his meagre knowledge of English would have been in a position to exercise any kind of effective control over the preparation of the English-Malayalam Dictionary by the plaintiff.
12. The farther case of the defendants is that D.W. 3 had scrutinized the manuscript prepared by the plaintiff and effected some corrections. The educational qualification of D W. 3 consists only of a pass in the S.S.L C. examination. He has confessedly no other literary qualification whatever and not even any previous experience of proof-correction. He claims to have possessed competence to make corrections in the manuscript of the revised dictionary stating that defendant 2 had given him some training for that purpose. It has been brought out in his cross-examination that he had been convicted on a charge of theft and had undergone imprisonment for fifteen days as a consequence of which he was also dismissed from the college where he was studying for the intermediate course. I have no hesitation to hold that the testimony of this witness is totally unworthy of reliance. It is abundantly clear that this witness has come forward at the behest of D.W. 1 who is his close relation, to speak in support of the artificial story trotted out by defendant 2 (D.W. 1). Disbelieving the evidence of D.Ws. 1 and 3 on this point, I hold that the preparation of the revised dictionary had been entrusted to the plaintiff as an independent contractor, the execution of the work being left to him to be performed by the exercise of his skill in such manner as in his judgment was most likely to ensure the success of the venture. The circumstance that the plaintiff had agreed to do the work for a fixed remuneration does not materially affect the legal position because it is in no way inconsistent with the contract being one for service. Applying to the present case the principles laid down in University of London Press, Ltd. v. University Tutorial Press, Ltd. (1916) 2 Chancery 601, it is impossible to say, in the circumstances of the case, that the plaintiff was a servant of defendants 1 and 2 or that he prepared the revised dictionary under a contract of service.
13. In recording its conclusion that the authorship and copyright in respect of the revised dictionary cannot be said to vest in the plaintiff, the lower Court seems to have been very largely influenced by an impression that whenever an author is employed by a publisher to write a book or an article for a capital sum, the law will generally presume that it was the intention of the parties that the copyright shall belong to the publisher. This statement of the law by the lower Court is based on a passage appearing at p. 102 of Oopinger on Copyright which has been extracted in the judgment of the learned District Judge. In the said passage the learned author had only stated the legal position which originally obtained in England prior to the enactment of the Copyright Act, 1911, based on the decisions in Lawrence v. Aflalo 1904 A.C. 17 and Sweet v. Benning (1855) 16 C.B. 459. The legal position in this regard was completely altered by the Act of 1911 as is pointed out by the learned author himself in the following passage at p. 196 of the same book:
It is, upon the whole, submitted that the Act of 1911 has altered the inference to be drawn in oases where the facts are similar to those in Lawrence and Bullen v. Aflalo. It is clear that the case is overruled so far as it decided that the legal right to the copyright vested in the proprietors of the encyclopaedia, for the respondents were not under a contract of service with the proprietor, and it is only in such a case, that under the Act of 1911, the copyright could vest in the proprietor in the first instance.
There is, therefore, no warrant for invoking any legal presumption that the intention of the parties was that the copyright should belong to the publisher, merely because of the circumstance that the author had been engaged by the publisher to write the book for a fixed remuneration. The findings of the lower Court that the plaintiff cannot be regarded as the author of Exs. D. 4 and D. 5 and that he is not entitled to claim ownership of the copyright in respect of these two volumes of the revised dictionary are incorrect and unsustainable. I hold that in respect of the portion of the revised dictionary, excluding the first 176 pages, the plaintiff is the author and that the copyright vests in him.
14. The next question to be considered is whether there has been any assignment by the plaintiff of his copyright in favour of defendants 1 and 2. Under the Act, the assignment shall be in writing signed by the owner of the right in respect of which the assignment is made or by his duly authorized agent. The mere acceptance by the plaintiff of remuneration for the work done by him would not, therefore, constitute an assignment of the copyright. Defendants 1 and 2 have not produced any document as evidencing the so-called assignment, but what is contended by them is that the plaintiff having handed over the manuscript to them for publication must be taken to have impliedly covenanted to transfer the copyright also to them. It is further argued that by the handing over the manuscript to defendants 1 and 2, the plaintiff had granted a sole and exclusive licence to them to publish the work and that would amount to a transfer of the copyright. I am unable to accept either of these contentions raised by the defendants. In view of the specific provision contained in Section 5(2) of the Copyright Act, 1911, it is not possible to hold that even without any written instrument, the copyright must be deemed to have been assigned to the defendants by implication by reason of the plaintiff's conduct in sending them manuscripts of the revised dictionary.
15. There is also no evidence whatever to support the further plea of defendants 1 and 2 that the plaintiff had granted a sole and exclusive licence to them to print and publish the dictionary. All that can be reasonably inferred from the evidence available on record is that the plaintiff had transmitted the manuscript to defendant 2 pursuant to the arrangement entered into between them which contemplated the ultimate printing and publication of the work by defendant 1. Beyond this, there is nothing in the evidence to show that the plaintiff had granted a sole and exclusive licence to the defendants retaining in himself no further legal interest or right in respect of the work. The finding entered by the lower Court that the defendants had been granted an exclusive licence by the plaintiff and that the copyright in the revised dictionary was owned by defendant 2, cannot be sustained and is set aside. It is also not clear on what legal basis the lower Court has observed that the plaintiff is stopped from contending that defendant 2 is not the owner of the copyright, I hold that the plaintiff is not precluded by any rule of estoppels from contending that the copyright in respect of the revised dictionary vests in him and not in the defendants.
16. In the light of my having held that the copyright in the work vests in the plaintiff, the next question for consideration is whether the defendants have committed an infringement of such right. The learned counsel on behalf of the appellant contends that even if it is to be assumed that the defendants were not under an obligation to mention the plaintiff's name as the author of the book while printing and publishing it and that the mere omission to mention his name does not constitute an infringement of his right, the specific mention in the publication that the work had been revised and rewritten by ' Haran' and that the copyright vested in defendant 3 clearly constitutes an infringement of the plaintiff's right. It is seen from Exs. D. 4 and D. 5, that they contain a declaration that the revised edition was prepared by Haran himself. It is farther stated that the copyright in the revised edition belonged to defendant 3. In Hiller v. Cecil Film, Ltd. (1937) 2 All E.R. 464, the defendant-company, Cecil Film, Ltd., had purchased a song lyric from the plaintiff, the author of the song. In the film produced and released by them, in giving what is called 'screen credit,' i.e., stating who is the author of the lyric, the defendants did not state that the plaintiff was the author, but gave the name of one Vivian Ellis as the author of the song. Upholding the plaintiff's contention that there had been an infringement of his copyright, Bennett. J., held:
Basing my view upon the passage in the speech of Lord Watson in the case of Dahi v. Nelson Dookin & Co. (1881)6 App. Cas. 38 at 59 which Mr. Roxburgh cited to me, I find that it was a condition precedent that the right of the defendant-company, Cecil Film, Ltd., to use the plaintiff's lyric was that it should not give screen credit to anybody else. It follows from that, the company having given screen credit to the defendant Ellis, that there has been an infringement of copyright.
In the present case, there is absolutely no evidence to show that the plaintiff had authorized the defendants, either expressly or by implication to publish the work showing the name of any person other than himself as the author of the revised edition. In such circumstances, applying the principles of the aforesaid ruling to the present case it has to be held that the plaintiff had licensed or authorized the defendants, to use his literary material conditionally upon their not saying, when they used it, that somebody else is the author of the work. Such a term has to be implied in the contract, in the circumstaces of the present case, and the licence granted to the defendants must be held to have been subject to such an implied term so that any publication in breach thereof will not be covered or protected by the licence but will be an infringement. It must then follow that the publication effected by defendants 1 and 2 constituted an infringement of the copyright owned by the plaintiff.
17. It now only remains to consider the last point urged by the learned counsel for the respondents, namely, that defendant 1 company bona fide believed that the copyright in the work vested in defendant 2 and that the same had been transferred by him to defendant 3, and that, therefore, there was no conscious or wilful, infringement of the plaintiff's right on the part of the company. Section 8 of the Copyright Act, 1911, was in the following terms:
Where proceedings are taken in respect of the infringement of the copyright in any work and the defendant in his defence alleges that he was not aware of the existence of the copyright in the work, the plaintiff shall not be entitled to any remedy other than an injunction or interdict in respect of the infringement if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for suspecting that copyright subsisted in the work.
18. In order to get the benefit of the exemption under the section the defendant must discharge the burden of proving that at the date of the infringement he was not aware and had no reasonable ground for suspecting that copyright subsisted in the work. The innocence that must be proved is ignorance that ' copyright subsisted in the work.' The plea put forward by defendant 1 in this case is that they believed that defendant 3 was the owner of the copyright, a very different thing from alleging and proving that they did not suspect that any copyright existed in respect of the work Repelling an almost identical contention raised before him, Bailbache, J., stated the law thus in Byrne v. Stetist Company (1944) 1 K.B. 622:
The position of the defendants in fact was not so much that they did not suspect the translation was copyright as that they supposed that the copyright was in the Governor of Bahia, whose instructions for its reproduction they had obtained. This merely amounts to saying that they supposed themselves to have the authority of the owner of the copyright, a very different thing from alleging and proving that they did not suspect that any copyright existed. It is this latter state of mind that Section 8 requires to be proved, and Section 8 is no protection to a person who, knowing or suspecting that copyright exists, makes a mistake as to the owner of the copyright, and under that mistake obtains authority to publish from a person who is not in fact the owner.
The plea put forward by defendant 1 company has, therefore, to be rejected as untenable.
19. The lower Court has not recorded any definite finding on issue 12 relating to the quantum of damages. In view of my having come to the conclusion that the plaintiff is the owner of the copyright and that the defendants have committed an infringement of such right, it is necessary to investigate the question as to the quantum of damages awardable to the plaintiff. The observation of the lower Court in Para. 15 of the Judgment that the plaintiff alone was not responsible for the revised edition of the dictionary and that, therefore, he can complain only of a technical infringement of copyright can no longer be regarded as correct in the light of my finding that the authorship of the revised dictionary, excepting in regard to the first 176 pages, vests in the plaintiff. The lower Court will have, therefore, to investigate afresh the question regarding the quantum of damages, after giving both parties an opportunity to adduce any further evidence relating to the matter if they so choose.
20. The appeal is allowed, the decree of the lower Court is set aside and the suit is remanded to the trial Court for fresh disposal in the light of the findings contained in this judgment after investigating afresh only the question as to the quantum of damages awardable to the plaintiff and recording findings thereon. The plaintiff has limited his claim in this appeal to Rs. 3,000 and, therefore, in the further adjudication to be made by the lower Court the plaintiff's claim will be regarded as confined to the aforesaid amount.
21. The appellant will get the costs of this appeal from the respondents. One-half of the court-fee paid on the memorandum of appeal will be refunded to counsel for the appellant.