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Kamala Book Depot, Ltd. Vs. Sourendranath Mukherji and anr. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtKolkata
Decided On
Reported inAIR1935Cal508,157Ind.Cas.790
AppellantKamala Book Depot, Ltd.
RespondentSourendranath Mukherji and anr.
Cases ReferredKamalapat v. Swadeshi Mills Company
Excerpt:
- .....i see no force whatsoever in the argument that the plaintiff only bought the right to sell the novel published as a volume only. that appears to me to be as convincing as if the author had contracted that his photograph should appear on the cover, and then contended that be was entitled to publish his novel in a plain cover. in my opinion it is the defendant and not the plaintiff who seeks to imply a term into this contract. the contract was for the sale of the first edition of 1,100 copies. to imply a term that meant a reasonable time only for such sale, or that the author could publish the book in any other form, seems to me to contradict the contract.5. there will be an injunction restraining the two defendants, their servants or agents, from publishing or selling the novel in any.....
Judgment:

Remfry, J.

1. In this case the plaintiff seeks an injunction restraining the defendants from publishing or selling a work called 'Sourendra Granthabali' containing a novel called 'Naree or Nishetta Dip'. It appears that on 16th April 1930 defendant 1, an author, sold to the plaintiff the first edition of his new novel, Nishetta Dip, which was to consist of 1,100 copies in twelve forms in double crown size, and to be priced at Re. 1-8-0 or Rs. 2 for Rs. 200 or Rs. 225 if the price was Rs. 2. Thereafter, on 15th August 1932, defendant 1 arranged with defendant 2 to publish the same novel as part of a collection of his novels, and he did publish it. The plaintiff has only sold about 250 copies of the first edition which was priced at Rs. 2 and the collection which contained 11 or 12 novels was published at Rs. 2. The only contested point was the legal effect of the first agreement. The plaintiff claims that the collection is an infringement of his rights and that the author could not publish the novel in any form at all until the whole of the first edition was sold. The defendants contend that the author only sold a right to print and sell 1,100 copies in a particular form and did not assign the copyright, and that the author was entitled to publish the novel alone or in a collection, provided he did not publish it in twelve forms in double crown size.

2. It was admitted that whether defendant 2 knew of the first agreement or not, the question of infringement depended on the effect of the agreement. For the somewhat startling proposition that the plaintiff only purchased a right to publish in a particular form the defendants cited In re Jude's Manual Compositions (1906) 2 Ch 595 and on appeal (1907) 1 Ch 651. There, the question was whether the publisher was entitled to enter his name in the register as the assignee of the copyright. The agreement gave the publisher the right to publish and sell a collection of hymns on a royalty. Some of the learned Judges certainly described his right as a right to publish these hymns in a particular form, and it was held that he was not the assignee of the copyright. The Court however did not decide what would constitute an infringement of the publisher's rights, and as I read the judgment, it was not suggested that a publication in a different form would not be an infringement of his rights. Reliance was also placed on the decision of Jessel, M.R. in Warne v. Routledge (1874) 18 Eq 497. There a lady arranged with a publisher that he should publish a novel on a royalty. The decision was that it was a partnership and that as the lady had ended the partnership, and that as there were no terms as to the number of copies which the publisher could sell, or as to the time in which he had an exclusive right to sell, therefore, as in any other partnership, no terms could be implied, and once the partnership ended, the authoress could publish her novel through another firm. The publisher had not a contract which entitled him to claim that no publication could be allowed until he had sold the last copy of the novel which he had printed.

3. The plaintiff relied on Sweet v. Cater (1841) 11 Sim 572. In that case, the tenth edition of Sugden's Vendors and Purchasers was sold to the plaintiff, the edition to consist of 10,000 copies, the book to be published in a particular form and at an arranged price. The publisher brought an action for infringement against a third party and the question was what was the plaintiff's exact position. It was held that he was the assignee of an interest in the copyright which lasted until the last of the 10,000 copies was sold, and entitled him to the exclusive right to the copyright for that period. In my opinion, a sale of the first edition of 1,100 copies amounts to an assignment of an interest in the copyright until the last copy is sold. Until then the purchaser has the exclusive right to the copyright, at any rate, as far as the right to publish the novel in any form is concerned. I need not consider whether his right extends any further, e.g. the right to dramatize the novel. As a right to property was sold, defendant 2 is not entitled to infringe that right.

4. The arguments of the defendants, in my opinion, overlook that the author sold the first edition of 1,100 copies. I see no force whatsoever in the argument that the plaintiff only bought the right to sell the novel published as a volume only. That appears to me to be as convincing as if the author had contracted that his photograph should appear on the cover, and then contended that be was entitled to publish his novel in a plain cover. In my opinion it is the defendant and not the plaintiff who seeks to imply a term into this contract. The contract was for the sale of the first edition of 1,100 copies. To imply a term that meant a reasonable time only for such sale, or that the author could publish the book in any other form, seems to me to contradict the contract.

5. There will be an injunction restraining the two defendants, their servants or agents, from publishing or selling the novel in any form or shape or in any collection of novels until the last copy of the first edition is sold or disposed of. That, in my opinion, is sufficient and the plaintiff is not entitled to any copies of the collection. As regards damages the parties arranged that there should be an inquiry; that must be on the basis laid down in Kamalapat v. Swadeshi Mills Company, Ltd., 1929 PC 11; and unless the parties can agree to some figure, the question of damages will be referred to such officer as the Registrar may select. The costs of the suit will be paid by the defendants and the costs of the reference, if any, reserved.


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