1. The Plaintiff who is the respondent in this appeal purchased the right to publish and sell 90 songs in tamil composed by the first defendant, and paid Rs. 50 as the price. The second defendant, a few months afterwards, bought from the 1st defendant 47 songs, 40 of which, as found by the District Judge, are the same as those sold by 1st defendant to plaintiff and paid Rs. 40. He published those 40 songs and some others, two of which are found to be of an obscene character and sold copies of them to the public. The plaintiff has instituted this suit in order to restrain the 2nd defendant from publising and selling all or any of the 90 songs which he had purchased and for damages. He got a decree from the learned District Judge.
2. The first question argued by Mr. Venkatarama Sastriar who appears for the 2nd defendant, is that as a matter of fact there was no completed sale of the 40 songs in question to the plaintiff. The basis of that argument is that according to the case of the plaintiff himself the 1st defendant, the author., was to make corrections and revise the songs sold to the plaintiff, but that he failed to do so. We are asked to infer from that that the bargain was incomplete and therefore no rights of the plaintiff have been infringed. We cannot accept this contention, as the contents of the two manuscript books were sold to the plaintiff who paid for them, and the mere fact that the 1st defendant, the author, undertook to revise some of the songs or rewrite some of them, would in no way affect the completeness of the sale. So far as the 40 songs in dispute are concerned, we may take it upon the facts that they are substantially identical with those sold to the plaintiff, along with the other songs. Our attention was drawn to Section 80 of the Contract Act which says that ' where by a contract for the sale of goods, the seller is to do anything to them for the purpose of putting them into a state in which the buyer is to take them, the sale is not complete until such thing has been done.' But assuming that the section applies to the sale of a composition, such as a song or a poem, what the section contemplates is that where the parties intended that the contract was to be regarded as complete only when certain things were done, the contract could not be held to be complete until the act contemplated was done. This is borne out by the illustration to Section 80. As to whether a contract is complete in a particular case depends upon the facts of that case. In this case, on the facts, I have no doubt that the contract was complete.
3. The next question argued on behalf of the appellant is that there was no infringement of any right of the plaintiff if the author, that is the 1st defendant, sold the same songs to the 2nd defendant being enabled by the plaintiff to do so. The facts found are that the manuscript remained in the possession of the plaintiff after the sale, and th6 1st defendant was to go over to the plaintiff's office to revise the manuscript. It does not appear how these disputed songs were copied from the manuscript, whether by the 1st defendant himself or by one Picha Pillai who was employed in the office of the plaintiff but was apparently a friend of the 1st defendant. Whoever copied these songs for the purposes of sale to the 2nd defendant, the facts do not enable us to say that this was, due in any way to the laches of the plaintiff. The 2nd defendant, we may take it, made his purchase without knowledge of the fact that the property had been sold already to the plaintiff. But Mr. Venkatarama Sastriar has' not contended, nor could he successfully contend that mere absence of knowledge on the part of the 2nd defendant would be sufficient to give him a title to the property. The first purchaser, in the absence of any equity depriving him of his right, would be entitled to the property.
4. This, we may mention is not a case under the Copyright Act because the songs were not published by the plaintiff. But there is no doubt that the author has an exclusive right to his own productions and he can also assign such right even if the production has not been published. This is well settled law in England and there can be little doubt that this is the law in this country also. It is laid down in Mansell v. Valby Printing Co. (1908) 1 Ch. 567 on the authority of a series of decisions that ' the common law does give a man who has composed a work a right to that composition just as he has a right to any other part of his personal property; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of for ever copying his own composition after he has published it to the world, is a totally different thing.' And then quoting from Earle J. the judgment states: 'The nature of the right of an author in his works is analogous to the rights of ownership in other personal property, and is far more extensive than the control of copying after publication in print which is the limited meaning of copyright in its common acceptation and which is the right of an author to which the statute of Anne relates. Again the right of an author of an unpublished literary production or work of art is not confined to the paper or canvas or other material upon which the work is written or placed. His right is an exclusive right to publish or refrain from publishing it, as he may please, and any one who publishes it without his consent infringes his legal right, and does that which is actionable per se. It matters not how the wrongdoer obtained the production which he publishes, whether he took away the author's original material or whether he only copied it, or whether some third person copied it and passed the copy on to him.' There can therefore be no doubt that the plaintiff acquired a valid right to the composition and that he is entitled to restrain the defendants from further infringing his rights therein.
5. The learned judge has also given damages against the 1st defendant and rightly so. The 1st defendant's conduct in this case has been extremely blame worthy. He first sold the rights to the plaintiff and then surreptitiously purported to sell them again to the 2nd defendant and received cosiderations from both.
6. The appeal is dismissed with costs of the 1st respondent-plaintiff.