TMI Blog1988 (8) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... sociate and who is claimed, by his daughter defendant No. 6, so be the real author of the book India Wins Freedom (3) In order to appreciate the points in issue, it is necessary to set out the background in which the present controversy occurs. (4) According to the plaintiff, Maulana Azad, during his life time, wrote the aforesaid book India Wins FREEDOM. It is clear that Prof. Humayun Kabir, father of defendant No. 6, was associated with the writing of the said book. According to defendant No. 6 the said book was composed and written by her father and he is the author thereof. (5) It appears that the manuscript of the aforesaid book was ready for publication sometimes in November, 1957. Before the book could be published, Maulana Azad died on 22nd February, 1958. After that on 25th March, 1958 Prof. Kabir wrote to National Archives asking them whether they would be willing to act as trustees for the complete manuscript, including 30 pages which have not been published till today but were required to be published after 30 years of Maulana Azad's death i.e. after 22nd February, 1988. A similar letter was written by Prof. Kabir on 3rd April, 1958 to the National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st option to publish the complete book as originally composed and now lying under sealed cover with the National Archives New Delhi and the National Library, Calcutta when the seals are broken on 22nd February, 1988 as mentioned in the preamble of this agreement. (8) It is an admitted case of the parties that Fatima Begum continued to receive her share of the royalties till she died in April, 1966. It appears that, on Fatima Begum's death, succession certificate was obtained by her son Hamid Ali and thereupon he received the royalties under the agreement dated 2nd September, 1958. These royalties were paid to Hamid Ali till his death in December, 1981. (9) At this stage, another important fact may be taken note of. After the death of Maulana Azad, the two legal heirs, namely, Fatima Begum and Nooruddin Ahmed, arrived at a settlement with regard to the division of Maulana Azad's entire estate except the rights in the books written by Maulana Azad. On 19th February, 1959 Mohd. Tahir, on behalf of Fatima Begum, and Nooruddin Ahmed wrote to Pt. Jawahar Lal Nehru confirming that they shall abide by any decision given by Hafiz Mohd. Ibrahim in respect of the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants. By order dated 19th February, 1988 the plaintiff was allowed to withdraw from the suit and to file a fresh suit in an appropriate Court. It is thereafter that the present suit for rendition of accounts and injunction was filed. (12) The plaintiff also filed an application under Order 39 Rules I and 2 praying that the defendants be restrained from breaking the seals of the covers of the complete book India Wins Freedom and from making its contents known to public. The ad interim ex parte injunction sought for was granted and it is thereafter that defendant No. 1 moved an application under Order 39 Rule 4 and the said defendant No. 1 and defendant No. 6, Ms. Laila Kabir, who was imp leaded subsequent to the filing of the suit, filed their replies. (13) Briefly stated, the submission of the plaintiff is that the plaintiff is a legal representative of Maulana Azad and the copyright in the complete book vests in the legal representatives. This copyright, it is contended, has not and could not have been assigned in favor of Orient Longmans. In this connection, it is submitted that Prof. Humayun Kabir had no authority to enter into the agreement dated 2nd Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it can be proved that Maulana Azad is not the sole author. While according to defendant No. 6 Prof. Humayun Kabir is the sole author, the case of Orient Longmans, however, is that Maulana Azad and Prof. Humayun Kabir have, in law, to be regarded as joint authors. THE book having been published after Maulana Azad's death, it has to be shown as to whether Prof. Humayun Kabir had the authority to enter into the agreement dated 2nd September, 1958 with Orient Longmans. This authority had to be derived by Prof. Humayun Kabir from the legal representatives of Maulana Azad, irrespective of the fact whether Maulana Azad was the sole or the joint author of the book. What has, however, to be seriously considered is the contention of Ms. Pinky Anand to the effect that Prof. Humayun Kabir was the sole author. (19) My attention was drawn to the preface to the said book written by Prof Humayun Kabir on 15th March, 1958 in which he has referred to the background and the manner in which the said book was written. According to Prof. Kabir, on his persuation, Maulana Azad agreed to write his autobiography on Prof. Kabir assuring that he would do his best to relieve Maulana Azad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovement in this agreement is that it has been made out as if one half of the royalty was payable to Prof. Kabir in accordance with the wishes of Maulana Azad. (21) At this interlocutory stage, in the absence of any other evidence on record, I will proceed on the assumption that the facts, as narrated by Prof. Kabir himself in the preface dated 15th March, 1958 with regard to the manner in which the manuscript of the book was prepared, are correct. (22) While relying upon what has been stated by Prof. Kabir in the preface, the submission on behalf of defendant No. 6 is that the only conclusion which can be arrived at is that it was Prof. Kabir and not Maulana Azad who was the author of the said book. It was submitted that Maulana Azad merely gave the ideas and the thoughts and conversed with Prof. Kabir in Urdu and it is in fact Prof. Kabir who wrote the manuscript in English. Strong reliance is placed by Ms. Anand on the decision in the case of Donoghue v. Allied Newspapers Ltd., (1937) 3 All. E.R. 503. That was a case where series of articles entitled Steve Donoghue's Racing Secrets were published in a newspaper. Donoghue, who was a well-known jockey, commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter. (23) WALTER'S case is clearly distinguishable. There the question as to who is the author was in issue not between Lord Rosebery, whose speeches were reported, and the reporter but the question arose when the report which had been published in The Times was sought to be published in a book form by the respondent. The reason of the House of Lords holding that the reporter was the author is clearly brought out by the following passage from the speech of Lord Davey : IN my opinion the reporter is the author of his own report. It was who brought into existence in the form of a writing the piece of letterpress which the respondent has copied. I think also that he and he alone composed his report. The materials for his composition were his notes, which were his own property, aided to some extent by his memory and trained judgment. Owing to the perfection which the art of shorthand writing has attained in recent years, memory and judgment bear a less important part in the composition of a report of a speech than was formerly the case. But the question whether the composer has copyright in his report does not seem to me to vary inversely with or to depend on his skill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , delivered in public, in a report can vest in a reporter the sole copyright thereof. This aspect, however, does not squarely arise for consideration in this case and I need not delve on this any further. (25) The case of Donoghue (supra) does appear to support the contention of the learned counsel but the concept of joint authorship was not agitated before the Court, This concept is recognised under the Indian Law (Section 13(2) of the Copyright Act) as well as in England. More than 100 years ago, in the case of Levy v. Rutley, 1871 Vol. Vi, Law Reports, C.P. Vi, 523, the Court had to consider the concept of joint authorship. In that case a person was employed by another to write a play and the employer suggested the subject. When the play was completed the plaintiff and some members of his company introduced various alterations in the incidents and in the dialogues, to make the play more attractive, and one of them wrote an additional scene. The question which arose was whether under these circumstances the plaintiff could be regarded as a joint author of the play along with the writer. While rejecting the contention of the plaintiff, the Court held that the plaintiff wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld mean that the material on the basis of which a literary book is written would be of no importance, while deciding as to who is the author of a book. To agree with such a proposition would lead to results which are difficult to accept. For example, it is not unknown that great Scientists may not have the literary capabilities of transcribing their discoveries, theories and thoughts so as to be easily understood. If a Scientist, therefore, takes the services of another person with a view to transcribe his thoughts, findings and material in the form of a book or articles, can it mean that the author of the Scientific material is not the Scientist himself but the author is the person in whose language the material is expressed ? In such a case the person who transcribed the thoughts may not even be able to understand the material which is being written, but he may still have to be regarded as a sole author, if Donoghe's case is accepted as correct. Surely the intention of the Copyright Act cannot be to give the status of an author only to the person in whose language the literary piece is written while completely ignoring the person who contributed the entire material which ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentatives of Maulana Azad. (30) For the aforesaid reasons, it is not possible for me to come to the conclusion that Prof. Kahir was the sole author of the aforesaid work. As at present advised, it appears tone that Maulana Azad and Prof. Kabir have to be regarded as the jviniamhors o! the Said work. Prof. Kabir was more than a mere scribe of the though's of Maulana Azad. Both of them actively and intellectually collaborated in the compositions of the literary work. (31) The next question which arises for consideration is whether Prof. Kabir had any authority to execute the agreement dated 2nd September, 1958 with Orient Longman. (32) The owner of a copyright can, under Section 18 of the Copyright Act, assign his copyright in favor of another person. Section 19 provides for the mode of assignment. It requires that the assignment should be in writing signed by the assigner or by his duly authorised agent. In the present case the rights were assigned, according to the defendants, by Prof. Kabir by the agreement dated 2nd September, 1958. The question which, however, arises is whether Prof. Kabir had any authority, to do so. (33) It would be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing to show that any draft of the agreement dated 2nd September, 1958 existed which was ratified on 29th May, 1958 by Fatima Begum. Nevertheless, as the document mentions that arrangement between Prof. Kabir and Orient Longmans had been agreed to by Fatima Begum it would be safe to infer that the state of facts existing at least as on 29th May, 1958, regarding the publication of the book, was agreed to by Fatima Begum. By that date the full text of the book, containing 30 pages which have not so far been published, had been deposited with the National Archives and National Library. The arrangement which would have been arrived at between Prof. Kabir and Orient Longmans as on 29th May, 1958, could only be with regard to the publication of the abridged book excluding the 30 pages which were lying sealed. It has to be inferred that Fatima Begum was aware of and had agreed to the publication of the abridged version of the book by Orient Longmans. (35) The submission of defendant No. 6 is that even though there may not have been any express ratification in writing of the agreement dated 2nd September, 1958 by Fatima Begum, but on the facts and in the circumstances of this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tives, till recently, have sought to challenge the said arrangement regarding the publication of the complete book after the seals were to be opened on 22nd February, 1988. For all these years Fatima Begum, as well as her legal representatives including the plaintiff, have acquiesced to the aforesaid arrangement. It was broadcast to the whole world that 30 pages of Maulana Azad's book were lying sealed and were to be printed after 22nd February, 1988. During this time Fatima Begum and her legal representatives continued to receive royalty from the book, without any demur. Having acquiesced to this arrangement, it is now too late for the legal representatives of Fatima Begum to undo the wishes of the author, Maulana Azad, and to stall the breaking of the seals of the covers of the complete book or to prevent its content being made public. The 30 pages were admittedly written and it was the intention of Maulana Azad that the same should be published immediately or, if Prof. Kabir is to be believed, published after 30 years. This intention of the author, who died over 30 years ago, ought not to be lightly interfered with, at the instance of one of the legal representatives, at thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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