JUDGMENT S. Maharajan, J.
1. The plaintiff sues for declaration that he is the owner of the copyright in a Tamil story, ‘nazhuval’ written by him, for a permanent injunction restraining defendants 1 and 2 from exploiting a film, ‘Iru Malargal’, which is said to be a reproduction of the plaintiff’s story, and for recovery of damages to the tune of Rs. 40,000. The defendants in their answers deny the basis of the plaintiff’s claim Seven issues were framed by Palaniswamy, J., on 6th August, 1970. On the 13th November, 1970, the second defendant filed an additional answer raising the additional plea that the suit is not maintainable for non-registration of the plaintiff’s copyright in the story ‘nazhuval’.
2. The following additional issue No. 8 is framed:
Whether the plaintiff’s suit, is not maintainable for non-registration of his copyright in the story ‘nazhuval’?
3. Preliminary arguments were advanced upon issue No. 8, and I shall proceed to give my finding thereon.
4. Admittedly, the plaintiff, whose story was published in the issue of the ‘Ananda Vikatan’ dated 19th May, 1963, has not registered his copyright therein. The contention of the second defendant is that although the plaintiff might have acquired a copyright in the story, he is not entitled to enforce the same without registration thereof. I would have dismissed this contention without serious notice but for the observations made by a Division Bench of the Madhya Pradesh High Court in support of this contention. Those observations have been reported in Mishra Bandhu Karyalaya v. S. Koshel A.I.R. 1970 Madh. pra. 261 at page 267 and are as follows:
The Indian Copyright Act, 1914, had nowhere made any provision for the registration of copyrights. Under the Copyright Act, 1957, it appears that under Sections 13 and 45, the registration of a book with the Registrar of Copyrights, is a condition for acquiring copyright with respect to it. A plain reading of the several provisions of the Act, leaves no doubt in our minds that a copyright in a book now is only secured if it is an original compilation and has been duly registered according to the provisions of the 1957 Act. Once it is so registered, the author is deemed to acquire property rights in the book. The right arising from the registration of the book can be the subject-matter of civil or criminal remedy, so that, without it the author can have no rights, nor remedies inspite of the fact that his work is an original one. We are however, concerned with the state of law prevalent under the Imperial Copyright Act, 1911, enacted by the British Parliament, subject to such modifications as stated in the Indian Copyright Act, 1914.
The last sentence shows that the previous observations quoted above were entirely in the nature of obiter. I feel constrained, With great respect, to disagree with the obiter dicta of their Lordships and to hold that both under the Copyright Act, 1957 and under the Copyright Act of 1914, the legal position is the same, viz., that regardless of registration, the author acquires a copyright in his work, and non-registration thereof does not liable the owner of the copyright from bringing an infringement action. I shall presently show with reference to the several provisions of the Copyright Act, 1957, that registration is not a pre-requisite to the acquisition of a copyright.
5. Although in Chapter H of the Act, a machinery has been provided for registration of copyrights, there is no provision therein which requires compulsory registration of copyrights. Neither Chapter XI, which deals with infringement of copyright, nor Chapter XII, which deals with civil remedies, provides that nonregistration of a copyright shall have any penal consequences.
6. Section 17 says that subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein. But it is not in every kind of work that copyright can be claimed because Section 13 provides:
Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,–
(a) original literary, dramatic, musical and artistic works;
(b) …
(c)…
In neither of these sections, however, is registration of the copyright prescribed as a condition precedent to the acquisition thereof.
7. We may next turn to Section 51 of the Act, which runs as follows:
Copyright in a work shall be deemed to be infringed….
(a) when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act….
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) …
(b) when any person….
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) by Way of trade exhibits in public, or
(iv) imports (except for the private and domestic use of the importer) into India any infringing copies of the work.
There is nothing in this section to indicate that in the matter of infringement of copyrights, the Legislature drew any distination between copyrights, which are registered, and those which are not. On the contrary, the scheme of the Act shows that an author acquires a copyright the moment he produces a literary work and it is open to him as the owner of the copyright to effect an assignment thereof, whether he has registered it or not. Section 55, which occurs under the Chapter entitled ‘civil remedies’, provides that where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by the Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. This section does not insist that the owner of the copyright ought to have registered this copyright before he institutes a suit in case of an infringement.
8. Learned Counsel for the second defendant would, however, contend that the provision for registration of copyrights would be rendered meaningless if nonregistration should have no penal consequences. I am unable to agree. Take, for instance, the Indian Registration Act, which makes a distinction between compulsorily registrable documents and optionally registrable documents. Where a document is optionally registrable and a party does not choose to have it registered, it can certainly not be contended that the optionally registrable document is void for non-registration. Registration in such cases confers upon the party certain advantages in the matter of proof. In fact, Section 48 of the Copyright Act, provides that the Register of Copyrights shall be prima facie evidence of the particulars entered therein, and shall be admissible in evidence in all Courts without further proof or production of the original. If the Legislature had intended that registration shall be compulsory, one would expect the language of Section 48 to be radically different from what it is; it ought to have said that without registration, no valid copyright can be claimed or enforced.
9. Learned Counsel for the second defendant places great reliance upon Section 44 of the Act in support of his contention. That section runs as follows:
There shall be kept at the Copyright Office a register in the prescribed form to be called the Register of Copyrights in which may be entered the names or titles of works and the names and addresses of authors, publishers and owners of copyright and such other particulars as may be prescribed.
The contrast between the word “shall” in the earlier part of the section and the word “may” in the later part makes it manifest that although the maintenance of the Copyright Register is compulsory, the entry therein of the names or titles of works and the names and addresses of authors, publishers and owners of copyright is left to the option of the owner of the copyright. This is emphasised by Section 45, which says that the author of any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for entering particulars of the work in the Register of Copyrights. It is found from Tuck v. Priester L.R. 19 Q.B.D. 48, that the English Copyright Act of 1862 expessly provided that no proprietor of any such copyright shall be entitled to the benefit of that Act until such registration. But this provision has been repealed by the English Copyright Act of 1911, with the result that even in England, registration has ceased to be a pre-condition to the acquisition of a copyright. It is important to observe that the Indian Copyright Act of 1957, contains no provision similar to the one contained in the English Copyright Act of 1862. In the absence of such a provision, I hold that registration of copyrights is not compulsory under the Act and that non-registration does not disentitle the plaintiff to sue for the reliefs he has prayed for in the plaint. This issue is consequently answered against the second defendant.
sarvepalli legal 