2. It appears that the present writ petition was earlier dismissed on 23-2-1983 on the ground that this Court has no jurisdiction to entertain the same. However, C.A. No.42 of 1983 in favour of petitioner was allowed by the Supreme Court on 13-1-1985 and it was held that the Lahore High Court has illegally refused to exercise jurisdiction in this case and sent back the same for decision on merit.
3. Learned counsel for the petitioner contends that the late Maulana had no Copyright in the speeches and lectures delivered by him and as such the said Mr. Hafeez-ur-Rehman shall be deemed to be the author of the work which comprises of record prepared by him, . Within the meaning of section 10(1)(c) of the Copyright Ordinance, 1962. Learned counsel for respondent No.3 on the other hand insists that in view of the definition of literary work in section 2(c) of the said Ordinance, the speeches and lectures delivered by late Maulana on religious matter constitutes a literary work and as such the late Maulana had a copyright and the said Hafeez-ur-Rehman could not have made record without the consent of late Maulana and otherwise in the manner prescribed in the said Ordinance and as such he cannot be considered to be the author of the said work as defined in section 2(d) of the said Ordinance. Learned counsel also objects that throughout the petitioner's case had been that it was said Hafeez-ur-Rehman Ahsan who had made copies and record of the speeches and lectures of late Maulana. The precised contention is that the petitioner has no locus standi to file the present writ petition.
4. Learned counsel for the. Petitioner has tried to meet the first argument of the learned counsel for respondent by submitting that no copyright exists in a speech or a lecture and particularly when the same is delivered extempore. The precise contention is that in case, the lecture or speech is delivered .From some written material or note-prepared by the speaker then the copyright would exist in such notes or material but not in the speech or the lecture itself. However, the learned counsel for the petitioner has not been able to meet the argument which in fact constitutes an objection to the competency of the present writ petition.
5. I have gone through the record, copies whereof are appended with this writ petition, as also the judgment delivered by learned Chairman of the Board and his colleagues on the Bench. I find that the two learned Members of the Bench hearing appeal mainly relied on the provisions of said Ordinance where Chairman has made copious reference to the treatise compiled by some foreign writers on the subject and also some foreign judgments mentioned therein and has held that holding of copyright in a lecture or speech is possible. Mr. Sultan Rushk, Member has stated that the law applicable in the country i.e. The said Ordinance, 1962 does not warrant subsistence of such copyright. Mr. Rashid Latif Member in somewhat detailed opinion, analysed section 10 of the Ordinance to hold that lecture or speech does not find mention as a work wherein copyright subsists. He has also sought to distinguish the opinion expressed in the work of the foreign writer relied upon by the Chairman and has held that the case referred provided for limited audience and not a lecture or speech delivered in public.
6. After examining the said opinions of the learned Chairman and Members of the Board in the light of the provisions of said Ordinance, 1962 and also having examined the various judgments referred to in the opinion of the Chairman, I find that the opinion expressed by Mr. Rashid Latif. Member is in accordance with law applicable in this country. A perusal of the judgment in case of Caird v. Sime 1887 Appeal Cases 326 would reveal that a Professor of Scottish University delivered a lecture in his class-room as part of his ordinary course as students of the University who were admitted on the payment of prescribe fee. The question arose as to whether the students of the University has or has not the right to print or publish without Professor's authority. The Sherrif whose position is akin to Registrar under the said Ordinance, held on a complaint by the said Professor that he had copyright and the respondent had no right to publish the same and directed delivery of copies of the publication. On an appeal, the majority of the learned Judges held that a Professor in a University had a right to restrain publication of lecture. Against the said opinion matter was brought to the Privy Council in the House of Lords. It was held that the delivery of lecture in such circumstances was not equivalent to the communication to the public---at-large and the appellant was entitled to restrain other persons from publishing them without his consent". In the case of Walter v. Lane, 1900 Cr.C. 289. Some. Speeches of Lord Rosebery were first reported in the Time Newspaper. Later the said newspaper published the said reports. It was object that the said magazine had no copyright and thus, is not authorised to publish the said speeches. The matter ultimately came up before the Privy Council of the House of Lords. The leading opinion was of Lord Chancellor Halsbury. With reference to the above observations of the Court of appeal that a man who himself makes a directory and publishes it is the author of the directory, the reporter of speech is not, it was observed by Lord Chancellor that "The judgment goes on to say that "the distinction is all important" but it does not explain what the distinction is. A man goes along a street, collects the names, addresses and occupation of each dweller therein. What is the original composition of which, according to the Court of appeal he is the author? The name of the Street? The number of the street? The names of the dwellers in the several houses? What is the distinction which the Court of appeal makes in giving copyright to the result of this labour when reduced into writing? What is it that makes it an original composition? But further---where do the words "original composition" come from? If the producer of such a book can be an author within the meaning of Act, I am unable to understand why the labour of reproducing spoken words in writing or print, and first publishing it as a book does not make the person who has so acted as much an author as the person who writes down the names and addresses of the person who live in a particular street. The producer of this written composition is to my mind a person who is author of the book within the meaning of the Statute". Majority of their Lordships agreed with Lord Chancellor and the judgment of the Court of appeal to the contrary was reversed.
7. Similarly the case of Nicols v. Pitman was also decided in similar circumstance as the said case of Caird referred to above i.e. It was a lecture delivered to restricted audience admitted on payment of fee by the Committee of the College.
8: There is nothing on record to suggest that a plea was ever raised that the speeches, notes whereof were taken by Hafeez-ur-Rehman Ahsan or which were recorded on tape by him were not given in public. In this view of the matter, I do hold that it was said Hafeez-ur-Rehman Ahsan who was the author of the record.
9. Coming to the said objection of learned counsel for respondent, I do feel that on technical basis argument has some force inasmuch as the petitioners has not care to explain in this writ petition as to how it had applied for the copyright and as to on what basis has filed this writ petition. There is no reference to any resolution or acquisition of the said work by the petitioner, apparently a company, in the said work. However, it is merely technicality. Since Hafeez-ur-Rehman Ahsan himself is representing the petitioner-company, has filed this writ petition and does not claim that the petitioner-company has not been transferred the right in the said work compiled by him.
10. As a result of the above discussion, I find that the respondent No.1 as also respondent No.2 acted without lawful authority inasmuch as their ultimate orders are not warranted by the provisions of said Copyright Ordinance, 1962. This writ petition is accordingly allowed, the impugned orders are declared to be without lawful authority. The result would be that the application for registration filed by the petitioner shall be deemed to be pending and shall be disposed of in the light of the above observations. No order as to costs.