Therefore the mere absence of a termination clause cannot lead to the inference that the contract is perpetual. On the contrary the absence of termination clause together with absence of any stipulation as regards duration thereof would lead to the conclusion that the contract is terminable at will by either party.
The submission that there has been a perpetual assignment or partial assignment of the right to publish the books according to us is fallacious. It is true that when a right to publish is granted, there is an assignment. But that assignment is co-terminus with the agreement. The right to publish cannot exist independently of the agreement.
Kolkata High Court (Appellete Side)
Bench Judgement Of This Court In ... vs State And Anr. Reported In 1991 ... on 5 November, 2014
Present: Hon'ble Justice Girish Chandra Gupta And Hon'ble Justice Shib Sadhan Sadhu, Citation; AIR 2015(NOC)187 HP GIRISH CHANDRA GUPTA J. The appeal is directed against an order dated 11th March, 2014 by which the learned Trial Court dismissed an application for injunction under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure.
The facts and circumstances of the case are as follows:
The plaintiffs instituted the suit alleging that Late Dr. Durlav Chandra Dutta was the author of the books on "Gynaecology" and "Obstetrics". The author assigned the publishing rights by an agreement dated 7th November, 1981. The books have acquired international fame. The author died in the year 1995. It is alleged that by virtue of the said agreement though the copyright belongs to the author but the right of publication belongs absolutely to the plaintiffs. After the death of the author the amount of royalty was paid to his heirs viz. the widow and the daughter. After the death of the widow the amount of royalty has continuously been paid to the daughter. The daughter is alleged to have raised unreasonable demands, which the plaintiffs were not liable to meet. The agreement dated 7th November, 1981, in derogation of the right of the plaintiffs to publish the books perpetually, was purportedly terminated by a letter dated 9th October, 2013. The plaintiffs replied to the letter dated 9th October, 2013 by their letter dated 6th November, 2013 pointing out that the alleged termination was illegal and not sustainable in the eye of law. It is further alleged that in violation of the agreement dated 7th November, 1981 the books were permitted to be published by the sole heir of the author and her husband, who has for some time been editing the revised version of the books, by the defendant no.3 Jaypee Brothers Medical Publishers Pvt. Ltd.
It is in these circumstances that the suit was filed claiming a declaration that the amended agreement dated 7th November, 1981 is subsisting and binding upon the parties; a decree for declaration that the plaintiffs alone are entitled to publish, distribute and sell the text book of Gyanecology and the text book of Obstetrics both authored by Dr. Durlav Chandra Dutta; a declaration that the purported cancellation of the agreement by the letter dated 9th October, 2013 is illegal and permanent injunction restraining the defendants from publishing, distributing, selling, advertising for sale or any other manuscripts of the aforesaid books. In the aforesaid suit an application for injunction was made which has been dismissed by the learned Trial Court which is under challenge.
Mr. K.K.Mitra, learned advocate, appearing for the appellants advanced the following submissions:
(a) The defendants no.1 and 2 claim to have resorted to cancellation of the agreement for the grievances disclosed in their letter dated 9th October, 2013.
He submitted that these grievances could have been ventilated before the Board but those grievances could not furnish any cause of action to the said defendants to terminate the agreement.
(b) The agreement dated 7th November, 1981 does not provide for termination.
He contended that this is an indication that the grant in favour of the plaintiffs was a perpetual one.
(c) In any event, he contended that the plaintiff is the assignee of the right to publish. In support of his submission he relied upon a Division Bench Judgement of this Court in the case of Jogendra Nath Sen vs. State and Anr. reported in 1991 (ii) CHN 141 wherein the following view was taken.
"If an author assigned the right to publish his work to another, it is the latter who thence forward is to be treated for all purposes as the 'owner of the copyright' as respects the right to publish even though the author may still continue to be the 'owner of copyright' as respects all the other rights, except the right to publish. And as respects the 'right to publish' so assigned even the author, though still owning all the other rights may be held guilty for infringement for publication without the latter's consent. "
(d) He submitted that there is also a concept known as partial assignment of the copyright which is applicable to the case of the plaintiffs. He in support of his submission drew our attention to a Judgment in the case of Jonathan Capes Ltd. vs. Consolidated Press Ltd. reported in 1954 (3) AER 253 wherein the following view was taken.
" The other point on which it is necessary to reach a conclusion is whether the rights which are given to the plaintiffs by the agreement amount to a partial assignment of the copyright or some other transfer of rights which enables the plaintiffs to sue alone without joining the author of the work. Several possibilities have been put forward and this depends, in essence, on the provisions of the Copy Right Act, 1911, Section 5(2) and Section 5(3). Referring to Section 5(2) which is a new provision of the Act altering the former Copy Right Law, it is plain that the owner of the copyright in any work may assign his right either wholly or partially, and of course, subject to territorial limitations. The sub-section, however, also introduced another conception which was apparently of a new kind: the owner of the copyright may grant any interest in the right by licence. It is argued on behalf of the plaintiffs that, if either of those two things are the result of the agreement to which I have referred, that is sufficient to enable the plaintiffs to bring an action in their own right against the defendants. It is argued, on the other hand, on behalf of the defendants that the agreement of April 16, 1951, does no more than create a licence, which may be a defence to an action for infringement but does not give any right to the owner or grantee of the licencee to sue an infringer of the rights of copyright in the work on his own motion.
Here again, I do not feel any real doubt as to the proper construction of the agreement. I have been referred to certain authorities in which the matter is to some extent discussed, but I do not get a great deal of assistance in reaching the proper construction of this agreement in its ordinary and natural way, however, it is, I think, quite plain that there is transferred and assigned to the plaintiffs by the words "the exclusive right to print and publish an original work, or any part or abridgment thereof, provisionally entitled 'A Mouse is Born' in volume from" what amounts to a partial assignment of the copyright conferred on the author by the Copyright Act, 1911, S.5(1) , and, therefore, it is plain that the plaintiffs are entitled to bring this action."
Lastly, it was contended by Mr. Mitra, that the plaintiffs have spent huge amount in publishing and marketing the books throughout the world and therefore considering the balance of convenience an order of injunction should have been passed as prayed for. He therefore invited this Court to reverse the order and to pass an order as prayed for.
Mr. Bachawat, learned Senior Advocate, drew our attention to the agreement dated 7th November, 1981 and in particular to Clause 12 thereof which reads as follows:
"Copyright of the book shall remain solely with the author and if there be any publication of this book or any part of it in infringement of the copyright of this book the author shall take immediate necessary legal action against the offender in collaboration with the publisher and all the expenditure thereto shall be borne by the author. In case of exigency the publisher may also take necessary actions/steps against such infringement as it may be deemed fit and proper but the expenditure thereto shall be on account of the author."
Mr. Bachawat contended that there can be no doubt that copy right is vested in the author and the same was never transferred to the plaintiffs. He also drew our attention to Clause 13 of the agreement which provides as follows:
"The publisher shall furnish to the author yearly account of the number of copy of the book printed and sold and shall make payment of all the dues to be paid to the author towards royalty, calculating the amount at the rate of 15% on the face value of the number of copy sold up to the date of such accounting subject to adjustment of advance payment if any made on account earlier."
He contended that the plaintiffs did not discharge their obligation contained in the agreement dated 7th November, 1981 and in particular in Clause 13 thereof quoted above.
The next submission advanced by Mr. Bachwat was that the plaintiffs were a mere licensee and the license has been revoked after giving a month's time to the plaintiffs to clear their stock. The claim as regards perpetual right to publish or the claim that the plaintiffs are assignee or partial assignee of the right to publish according to him are without any basis. The judgments cited by Mr. Mitra do not apply to the facts and circumstances of the case.
There is, as such, no reason why this Court should interfere with the order passed by the learned Trial Court.
We have considered the submissions advanced by the learned Advocates appearing for the parties. The principal question for determination, according to us, is "whether on a construction of the agreement dated 7th November, 1981 it can be held that the right to publish the books was granted to the plaintiff perpetually? The suit is based on the aforesaid assertion. It is on the aforesaid basis that all the claims for declaration and perpetual injunction have been put forward in the plaint.
Mr. Mitra has not disputed that the author continues to be the owner of the copyright. Our attention was not drawn by Mr. Mitra to any clause of the agreement dated 7th November, 1981 on the basis whereof it can even be suggested that the right to publish the books belong absolutely to the plaintiff. On the contrary, the right to publish the books appears to have been given by the author "during the period this agreement shall remain in force". It is a pointer to show that the contract is terminable. Clause 5 of the agreement provides that the author is alone entitled to revise the book which is again inconsistent with a grant of a perpetual nature.
Therefore the mere absence of a termination clause cannot lead to the inference that the contract is perpetual. On the contrary the absence of termination clause together with absence of any stipulation as regards duration thereof would lead to the conclusion that the contract is terminable at will by either party.
The submission that there has been a perpetual assignment or partial assignment of the right to publish the books according to us is fallacious. It is true that when a right to publish is granted, there is an assignment. But that assignment is co-terminus with the agreement. The right to publish cannot exist independently of the agreement.
The judgments cited by Mr. Mitra do not really help him. The judgment in the case of Jogendra Nath Sen & Ors. vs. State & Anr. Reported in 1991(II) CHN 141 was passed by a Division Bench of this Court in exercise of criminal revisional jurisdiction. It was alleged in that case that there had been an infringement of the copyright by parting with the right to publish the books. What had happened was that the author had entered into an agreement with Jogendra for the purpose of publication of books. Jogendra got the books published by his son. It is in this fact that the son of the author alleged that the copyright had been infringed and a criminal proceeding was started. This Court in the aforesaid facts held that after the right to publish was assigned to Jogendra, it was for him to decide as to whether he will publish the books or he will have it done by anybody else. This Court in the circumstances quashed the complaint. Observations made in the aforesaid judgment have to be read in the light of the facts of that case.
The judgment in the case of Jonathan Cape, Ltd. vs. Consolidated Press Ltd. reported in 1954 (3) All England Law Reports equally has no manner of application to the facts of the case. The question which arose for consideration before the Queen's Bench was whether the publisher who sought to recover damages from an infringer of copyright was competent to do so without adding the author as a co-plaintiff. It was held that the publisher was occupying the position of a partial assignee and was entitled to maintain the action.
Assignment or partial assignment has to be implied, according to us, in order to give business efficacy to the agreement between the author and the publisher. But the assignment or partial assignment, if any, is co-terminus with the agreement unless the subject matter of assignment is the copyright itself and such assignment is absolute in nature. Any other interpretation shall render the ownership of the copyright meaningless. Publication is an incident of the copyright and cannot exist in isolation. When the copyright is admittedly vested in the author, the right to publish is also vested in him except for such period which may have been granted by him. The grant in this case is evidenced by the agreement which is terminable at will and has been terminated.
There are some more facts which need to be noticed. From the letter dated 9th October, 2013 it appears that more than a sum of Rs.2 crore were outstanding on account of royalty which the plaintiff had failed and neglected to pay to the defendant no.1. The fact that a sum of Rs. 2 crore were outstanding has been admitted by the plaintiffs in their letter dated 6th November, 2013 wherein it was alleged that "as per verbal commitment between you and us 50% of the amount out of Rs.2 Crores approximately shall be paid within August, 2013 and remaining amount of Rs.1 Crore approximately shall be paid within March, 2014". It appears that after receipt of the letter dated 9th October, 2013 the plaintiffs issued a cheque for Rs.2,50,000/- on 20th October, 2013, a cheque for Rs.2,50,000/- on 26th October, 2013 and a cheque for Rs.2,50,000/- on 31st October, 2013. All the aforesaid cheques were dishonoured upon presentation for payment. From the memo issued by the bank it appears that the ground for dishonour of the cheques was "payment stopped by the drawer". The plaintiffs by their letter dated 6th November, 2013 appear to have issued a cheque for Rs.7,50,000/- in lieu of the dishonoured cheques. The plaintiffs by another letter dated 6th November, 2013 requested the defendants to resolve the matter amicably. The defendants however by their letter dated 23rd November, 2013 informed the plaintiffs that the former chose to stick to their decision to terminate the agreement. It is not in dispute that on 28th November, 2013 the books were published by the defendant No.3 Jaypee Brothers Medical Publisher Private Limited presumably pursuant to a fresh agreement entered into between the defendant No.1 and the said Jaypee Brothers.
From the aforesaid discussion it is clear that the plaintiffs have not been able to demonstrate that they have any prima facie case, in the absence whereof an order of injunction could not have been granted.
We are as such unable to find any fault with the judgment and order of the learned trial Court. The appeal is, as such, dismissed.
Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates for the parties, upon compliance of usual formalities.
(Girish Chandra Gupta, J.) I agree.
bd/rp. (Shib Sadhan Sadhu, J.)
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