' This appeal is directed against the judgment and decree dated 18.02.2009 passed by the learned Addl. District Judge, Lahore whereby the plaint of suit for declaration and permanent injunction under the Copyrights Ordinance, 1962 was rejected under Order VII Rule 11, CPC, as barred by law under Section 14(1) of the Copyrights Act, 1962.
2. Brief 'facts giving rise to the filing of this appeal are that Respondent No. 1/Mst. Noshi (Nishat)
Gillani, a writer of book published as "Mohabbatain Jub Shumar Karna" made an agreement dated 08.01.1993 with the appellant whereby she transferred all the legal rights in relation to publication and publicity of the said book in favour of the appellant. In order to fulfill his responsibility as a publisher, he invested huge amount, borne all the necessary expenses and paid the agreed royalty/compensation to Respondent No.
1. According to the appellant, since he has the exclusive and absolute right of publication of said book for indefinite period, therefore, Respondents No. 2 and 3 could not republish the said book in violation of the agreement.
3. During the pendency of said suit, the Respondent No. 1 filed an application under Order VII Rule 11, CPC, read with Section 14 of the Copyrights Act, 1962 stating that the suit is barred under Section 14 of the Copyrights Act, 1962 as the life of the agreement between the parties is 10 years which was allowed and the plaint was rejected vide the impugned order dated 18.02.2009, hence this Regular First Appeal.
4. Rana Farman A.I Sabir, learned counsel for the appellant submits that under Section 3 of the Ordinance, a publisher has an exclusive right of publication and under Section 28 ibid, he can publish edition of work for 25 years. Adds that Section 14 of the Ordinance is not attracted as it is not the assignment of copy to right of publication. Places reliance upon Shakeel Adilzadah versus Pakistan Television Corporartion Ltd. And 2 others (1989 CLC 2447) and Jogendra Nath Sen and another v. State and another (AIR 1991 Calcutta 308), and prays for setting aside of the impugned judgment.
5. Mr. Muhammad Waseem Sindhu, learned counsel for Respondent No. 1 on the other hand, submits that it was the agreement of copyright under Section 14 of the Ordinance under which the author as an owner of copyright can assign only for a period of 10 years from the date of assignment and, therefore, prays for dismissal of the appeal.
6. Arguments heard. File perused.
7. The precise legal question raised before this Court is as to whether an author of a book can give the rights of publication to a publisher for indefinite period or that such right is limited to specific period of 10 years. Here it will be essential to understand the true import and meaning of word "Copyright".
8. The word "Copyright" by now has been accepted all over the world as an exclusive right of a creator over the created work. But if we go a little deeper into the meanings and the connotation, we would find it to be very close to the nature. It is a very common observation that whosoever creates something is called its creator and is entitled to be recognized as such The creation is named after the creator. Since ancient times for example, any momentum or any invention or even discovery had always been acknowledged with reference to a person. In more simplified form take the example of parents, who are responsible to bring a child into this world and that child after getting the birth, is called their child. Here the child will be named after the name of their parents. In bringing him up the parents are very jealous and possessive when it comes to his protection as they know how to groom them properly. Take another example of religions. The Christianity, for example, is named with reference to Hazrat Eisa (The Holy Christ), Jewishism as we know it because of its Prophet Hazrat Musa (A.S.) and last but not least the religion of Islam which is named after Hazrat Muhammad (P.B.U.H.) who introduced these religions to this world. Therefore, all these religions have been recognized through their Prophets.
9. Copyright is the modern form of acknowledgment of one's invention/creation. The author of a book should be equally possessive and to be proud of its creation and this right has been acknowledged under the Copyright Ordinance, 1962.
10. For our purposes, Section 3 sub-clause (a) is relevant, which is reproduced as under:- Meaning of Copy right.--(1) For the purposes of this Ordinance, "copyright" means the exclusive right, by virtue of, and subject to the provisions of this Ordinance:-
(a) in the case of a literary, dramatic or musical work, to do and authorize the doing of any of the following acts, namely:-- (i).............................................................
(ii)to publish the work; (iii)...............................................................
Under Section 2 (n) "infringing copy" means, --
(i) in relation to a literary , dramatic or artistic work, a reproduction thereof otherwise than in the form of a cinematographic work: ' The word Publication is defined in Section 4 and sub-sections (1)(a) will be relevant which is reproduced as under: ' Meaning of publication. (1) For the purposes of this Ordinance, "publication" means:--
(a) in the case of literary, dramatic, musical or artistic work, the issue of copies of the work to the public in sufficient quantities; (b)..................................
(c)....................................
(2)......................................................
(b) Section 14 of the Ordinance, the benefit of which is being claimed by Respondent No. 1 and has granted by the Court is about the assignment of the copyright. Section 14 is reproduced as under:- - Assignment of copyright.--(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright of any part thereof: ' Provided that, in case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence: ' Provided further that, where the owner of the copyright in a work is the author of the work, no assignment of the copyright in the work or of any interest in such, copyright shall be made, or if made shall be effective (except where the assignment is made in favour of Government of or any educational, charitable, religious or non-profit institution) for a period of more than ten years beginning from the calendar year next following the year in which the assignment is made; if an assignment of the copyright in a work is made in contravention of this proviso, the copyright in the work shall, on the expiry of the period specified in this proviso, revert to the author (who may reassign the copyright in the work subject to the provisions herein contained), or if the author be dead to his representative in interest.
"Provided further that the copyright in an unpublished work assigned by its author to any person or organization for the specific purpose of its publication shall revert to the authority if such work is not published within a period of three years from the date of its assignment, "; and
(2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the right not assigned, shall be treated for the purpose of this Ordinance as the owner of the copyright and the provisions of this Ordinance shall have effect accordingly.
"(2A) If the owner of a copyright, or the publisher to whom such right has been assigned, considers any of the terms of the assignment to be likely to effect his interests adversely, he may within one year of such assignment apply to the Board to consider such term and the Board may, after hearing both the parties, pass such order as it may deem fit; and the order of the Board shall be binding on both the parties."
(3) In this Section, the expression "assignee" as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.
11. It will also be equally relevant to reproduce Section 28 ibid to weigh the contention of the respondents:-- Protection of typography and terms of protection.--The publisher of an edition of a work shall enjoy the right to authorize the making, by any photographic or similar process, of copies, intended for sale in commerce, or the typographical arrangement of the edition, and such right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the edition was first published."
12. Here the perusal of above statutory provision reveals that assignment of copyright includes the act of publishing a literary work and the meaning of publication is the showing of copies of work to the public in sufficient quantities. The maximum period of such assignment in cases other than Government, educational, charitable, religious and non profitable institution is only 10 years, whereas the typographical arrangement in edition is protected for 25 years.
13. After having understood the legal position, it will equally beneficial to reproduce the: {{URDU TEXT}} ' A perusal of agreement dated 08.1.1993 admitted between the parties reveals that the exclusive right of publication of the said book was exclusively given to the appellant. But any valid agreement is one which is not barred by law, and only those clauses are enforceable 1 which are not in conflict with any statute. The author of a book may r, not specify the period of agreement but by operation of law its life can be curtailed to a defined period, therefore, its enforceability can always be questioned. Under Section 2(i) of the Contract Act, 1872:-
2. Interpretation clause.
(j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable.
' The agreement, therefore, binds the parties only for 10 years. Interestingly, the suit was filed on 06.06.1998 i.e. After 5 years and on 08.06.1998 a restraining order was passed by the Court which continued till the plaint was rejected under Order VII Rule 11, CPC, on 18.02.2009, and by that time almost seventeen years had lapsed since the agreement was executed.
14. Coming to the case law referred to by the learned counsel for the appellant as (AIR 1991 Calcutta 308) suffice it to say that it dealt the right of a assignee of a copyright in respect of the publication but it did not dilate upon the time period of the agreement which was not referred in Section 14 of the Indian Copyright Act, 1957. In Shakeel Adilzadah versus Pakistan Television Corp qrartion Ltd. And 2 others (1989 CLC 2447), Section 15 of the Copyright Act, 1962 was interpreted where the proposition was different than what we have in the present case, hence irrelevant.
15. Here we are also to embark upon the applicability of Order VII Rule 11, CPC, which is reproduced as under for ready reference: II. Rejection of plaint- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-value, and the plaintiff, on being required by the Court to correct the valuation within a time to be rued by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
' A plaint of the suit which is barred by law is to be rejected and the scope of this provision has been explained by the apex Court in case titled (2014 SCM R 513) in which following was held:- ' The object of the powers conferred upon the trial Court under Order WI, Rule 11, C.P.C. Is that the Courts must put an end the litigation at the very initial stage when on account of some legal impediments full fledged trial will be a futile exercise. In view of the above facts the suit of the plaintiff/respondents challenging the gift mutation was on the face of the record barred by time and there was no need for recording of evidence----------------- ' In view of what has been discussed above, the appeal filed by the appellant has been found meritless and is dismissed on merits.