' This first appeal filed by Sh. Saeed Ullah (appellant/ defendant) impugns the decree dated 26-3- 1991 passed by the learned District Judge, Lahore, whereby a suit filed by the respondents Nos.1 to 5 under section 60 of the Copyrights Ordinance, 1962 was decreed.
2. The subject-matter of the present appeal is the six volume book titled Tafheem-ul-Qur'an'. This book, admittedly, , was written by Maulana Maudoodi who was the owner of the copyright in the said work. The respondents Nos.1 to 6 are the legal heirs of late Maulana Maudoodi. The respondent No,6, namely, Haider Farooq Maudoodi son of the late Maulana Maudoodi did not join respondents Nos.1 to 5 in filing the plaint and was, therefore, impleaded as defendant No,3.
3. It was the case of the respondents/plaintiffs that after the death of late Maulana. Maudoodi the copyright came to vest in them and that the copyright was being infringed by the appellant/defendant who was printing and publishing Volumes I, III and IV of Tafheem-ul-Qur'an, without any authority, assignment or licence granted to him. The suit was resisted by the appellant/defendant who claimed that in 1972 an agreement had been entered into between his father, namely, Sh. Qamar-ud-Din and late Maulana Maudoodi on the basis of which Maktaba-e- Tameer-e-Insaniyat, which was owned by Sh. Qamar-ud-Din, was granted the exclusive right to print and publish Volumes I, III and IV of the aforesaid book.
4. Based on the pleadings of the parties the learned District Judge framed as many as ten issues including that of relief. Learned counsel for the parties, however, confined their arguments to Issues Nos.7 and 8 which are the core issues encapsulating the controversy between the parties. These issues were framed in the following terms:
1. Whether defendant No,1 is permanent publisher in respect of Volumes I, II and IV of Tafheem-ul- Qur'an? OPD
2. Whether the copyrights vest with the plaintiffs and defendant No,1 has infringed the rights by publishing the work? OPP"
5. Before me learned counsel for the appellant/defendant did not dispute the fact that late Maulana Maudoodi was the author and original owner of the copyright in "Tafheem-ulQur'an. He, however, argued that by virtue of an agreement between the appallant's father and late Maulana Maudoodi the Maktaba-e-Tameer-e-Insaniyat had become the exclusive licensee in respect of Volumes I. III and IV of the aforesaid book and on this basis, the appellant defendant was to be treated as the owner of the copyright in the said Volumes. Consequently, it was argued, no suit under section 60 of the Copyrights Ordinance, 1962 could be filed against the appellant/ defendant.
6. In the first instance learned counsel referred to the testimony of Khalid Farooq Maudoodi (P.W.3) and Haider Farooq Maudoodi (D.W.4) to show that there indeed, was an unwritten agreement between the appellant's father and late Maulana Maudoodi whereby the appellant's father was granted the exclusive licence to print and publish Volumes I, III and IV through Maktaba-e-Tameer- e-Insaniyat. I have gone through the testimony of P.W.1 and D.W.4. Although it does indicate that Volumes I, II and IV of Tafheem-ul- Qur'an were, indeed, being printed and published by Maktaba-e-Tameer-e-Insaniyat, the evidence of these witnesses, does not, in any manner, prove that the Maktaba-e-Tameer-e- Insaniyat or its owner Sh. Qamarud-Din had been granted an exclusive licence or was an assignee of the copyright in Volumes I, III and IV of Tafheem-ulQur'an. In these circumstances, it is not possible to accept the defence set up by the appellant/defendant that his father was an exclusive licensee of Volumes I, III and IV of the above-referred book.
7. At this juncture, it is important to note that the appellant/defendant had claimed to be an assignee of Volumes I, III and IV, before the learned District Judge. This plea, however, was not pressed before me.
8. Learned counsel for the appellant did, however, claim that the appellant was an exclusive licensee. The relevant provisions of the Copyrights Ordinance, which defines an exclusive licence and its essential prerequisites are sections 2(1) and 35 of the Copyrights Ordinance. These provisions are reproduced as under: "2(1) "exclusive licence" means a licence which confers on the licensee or on the licenser and persons authorized by him, to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in a work and "exclusive licensee" shall be construed accordingly;
35. Licences by owners of copyright.---The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the copyright by licence in writing signed by him or by his duly authorized agent: ' Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence."
9. It is clear from the statutory provisions reproduced above that a licence, in order to be recognized under the Copyrights Ordinance, has to be in writing. There, admittedly, is no written agreement between the appellant's father and late Maulana Maudoodi. Learned counsel for the appellant, however, argued that even if there is no formal agreement, a written agreement can, in law, be inferred from letters or other instruments in writing. To support this contention he also referred to case-law including the cases titled Ismail and others v. Inayat and others (1989 CLC 447) and Shakeel Adilzada v. Pakistan Television Corporation and 2 others (1990 CLC 714). The cited precedents, however, have no relevance in the present case.-
10. Learned counsel for the appellant drew the attention of the Court to Exh.D.W.3/A which is a book titled Tadon Ke Khatoot' published by the Islami Maktaba, Haiderabad. At page 116 of the said publication there is a letter written by one Tufail Muhammad to Muhammad Younus at Haiderabad. In the said letter there is a reference to Tafheem-ul-Qur'an alongwith the averment that some arrangement had been made with Sh. Qamar-ud-Din in respect of Tafheem-ul-Qur'an.
The nature and terms of such arrangement have not, however, been specified in the said letter.
Furthermore, there is nothing on record to show that Tufail Muhammad, who was the author of the aforesaid letter, was an agent authorized to act on behalf of late Maulana Maudoodi. At best, the aforesaid letter in Exh.3/A can be construed as indirect evidence of some undefined arrangement between late Maulana Maudoodi and Sh. Qamar-ud-Din father of the appellant. The said letter cannot, in law, be treated as the equivalent of a written agreement or even a memorandum of such agreement allowing an exclusive licence to the appellant's father to print and publish Volumes I, III and IV of Tafheem-ulQur'an.
11. In the foregoing circumstances, I find that the appellant/defendant has failed to prove that he has any right whether as assignee or licensee, to print and publish Volumes I, III and IV of Tafheem- ul-Qur'an. Keeping in mind the admitted position that late Maulana Maudoodi was the author and original owner of the work in question, I am not left in any doubt that copyright in the work remained vested in late Maulana Maudoodi and after his death in 1979 the same came to vest in his legal heirs. The said legal heirs were, therefore, entitled, in law, to maintain a suit under section 60 of the Copyrights Ordinance, 1962 and to prevent infringement of their copyrights.
12. For the foregoing reasons, the judgment and decree of the learned District Judge is unexceptionable. This appeal is, therefore, dismissed.