IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09..06...2010 Coram The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA and The Honourable Mr.Justice N.KIRUBAKARAN Original Suit Appeal Nos.232 of 2009 and 23 of 2010 OSA.No. 232 of 2009 The Periyar Self Respect propaganda Institution rep. by its Secretary Thiru K.Veeramani No.50, EVK Sampath Road Veppery, Chennai 600 007. .. Appellant/Applicant vs. 1. Periyar Dravidar Kazhagam rep. by its President T.S.Mani Office No. 1, Kamarajar Salai Mylapore, Chennai 600 004. 2. K.Ramakrishnan, General Secretary Periyar Dravidar Kazhagam Office No. 1, Kamarajar Salai Mylapore, Chennai 600 004. .. Respondents/Respondents Appeal against the order and decree dated 27.07.2009 made in Original Application No.940 of 2008 in C.S. No.814 of 2008 on the file of this Court. For Appellant : Mr.A.Thiagarajan, Senior Counsel for Mr.V.R.Shanmuganathan For Respondents: Mr.S.Doraisamy for R1 Mr.R.Thiagarajan, Senior Counsel for Mrs.Gladys Daniel for R2 OSA.No. 23 of 2010 Thanjavur Pagutharivalar Kazhagam rep. by its PresidentThiru. R. Rathinagiri 488, East Rampart, Thanjavur – 613 001. .. Appellant vs. https://hcservices.ecourts.gov.in/hcservices/ 1. The Periyar Self Respect propaganda Institution rep. by its Secretary Thiru K.Veeramani No.50, EVK Sampath Road Veppery, Chennai 600 007. 2. Periyar Dravidar Kazhagam rep. by its President T.S.Mani Office No. 1, Kamarajar Salai Mylapore, Chennai 600 004. 3. K.Ramakrishnan, General Secretary Periyar Dravidar Kazhagam Office No. 1, Kamarajar Salai Mylapore, Chennai 600 004. .. Respondents Appeal against the order and decree dated 29.01.2009 made in Application No.4331 of 2008 in C.S. No.814 of 2008 on the file of this Court. For Appellant : Mr.K.V.Venkatapathy, Senior Counsel for Mr.S.Shankaran. For Respondents: Mr.D.Veerasekaran for R1 Mr.V.Elangovan for R2 Mr.D.Rajkumar for R3 COMMON JUDGMENT F.M.IBRAHIM KALIFULLA,J. O.S.A. No.232 of 2009 has been preferred challenging the order dated 27.07.2009 passed in Original Application No.940 of 2008 in C.S. No.814 of 2008. O.S.A. No.23 of 2010 has been preferred against the order dated 29.01.2009 passed in Application No.4331 of 2008 in C.S. No.814 of 2008. By order dated 29.01.2009 passed in A.No.4331 of 2008, the learned Single Judge dismissed the application of the appellant in O.S.A. No.23 of 2010 for getting itself impleaded in the suit for infringement of copy rights laid by the appellant in O.S.A. No.232 of 2009. By order dated 27.07.2009, in the application of the appellant in O.S.A. No.232 of 2009 seeking an order of ad-interim injunction restraining the respondents in the said suit from in any manner infringing the copyrights of the appellant relating to Kudiyarasu and other scripts, books, publications pending suit, the learned Single Judge dismissed the application. As the issues involved in both these appeals are interconnected, both the appeals are disposed of by this common judgment. 2. According to the appellant in O.S.A. No.232 of 2009, https://hcservices.ecourts.gov.in/hcservices/ (hereinafter referred to as "the appellant"), it is a Public Charitable Society (Trust) registered under the Societies Registration Act, 1860, that Thiru. Erode Venkatanaickar Ramasamy, popularly known as Thanthai Periyar, was the founder and member of the appellant-trust, which was registered on 23.9.1952, that he was the Life President of the appellant trust, that Thanthai Periyar endowed his literary works and as its original owner along with other properties endowed them to the appellant trust, that he was also carrying on the paper publication, that by operation of law, the appellant trust became the copyright owner of all the literary works of Thanthai Periyar. It is claimed by the appellant trust that as per the Memorandum and Articles of Association of the appellant trust and also its Rules and Regulations, the appellant trust became an exclusive and absolute owner of all the literary works of late Thanthai Periyar. It is claimed that the speeches, writings and other literary works of Thanthai Periyar were periodically published in the Weekly called Kudiyarasu owned by Thanthai Periyar from the year 1925. It is further claimed that the literary works of late Thanthai Periyar from 1925 was arranged chronologically and subject wise by a team of persons nominated by the appellant trust on 02.05.1983 headed by one Thiru.G.Imayavaramban which team carried the work of compiling the literary works of Thanthai Periyar which was later on transferred into compact Disc as well as in book form, to which the appellant-trust became an exclusive owner and consequently, possessed copyrights from the original owner late Thanthai Periyar. It is stated that the respondents in OSA.No. 232 of 2009, (hereinafter referred to as 'the respondents'), by collecting the compilation made by the appellant trust, intended to publish the same on 17.9.2008 and since the said attempt of the respondents would infringe the exclusive copyrights of the appellant trust, it had come forward with the present suit for permanent injunction to restrain them and any one acting on their behalf from in any manner infringing the copyrights of the appellant trust relating to Kudiyarasu and other scripts, books, publications etc. 3. The cause of action, according to the appellant trust was an interview published in a bi-weekly called "Kumudam Reporter" dated 21.08.2008. It was published under the caption 'Periyar Yaaruku Sontham', wherein it was disclosed that they intended to publish the Kudiyarasu on 17.09.2008. As such, the appellant sought for permanent injunction in the suit as well as sought for award of damages of Rs.15 lakhs. The appellant trust also filed an Application No.940 of 2008 for an ad-interim injunction pending suit. 4. Initially by order dated 28.08.2008, the first respondent was directed to maintain status quo until further orders and the application was directed to be posted on 01.09.2008. Subsequently, by order dated 16.09.2008, passed in O.A. No.940 of 2008 and in Application No.4331 of 2008 in C.S. No.814 of 2008, both the defendants were directed to maintain status quo until further orders https://hcservices.ecourts.gov.in/hcservices/ and that all the respondents were directed not to sell the books till the court dispose of the application seeking an order of injunction. The applications were directed to be posted on 18.09.2008. Subsequently, on 22.10.2008, the order to maintain status quo was extended till 31.10.2008 and the application was also posted on that date. A detailed counter affidavit was filed by the first respondent on 05.09.2008. The second respondent filed his counter affidavit on 07.09.2008. 5. Be that as it may, the appellant in O.S.A. No.23 of 2010 came forward with an application in A. No.4331 of 2008, seeking to get itself impleaded in the main suit as well as in the interim application on the footing that he is the President of the appellant in O.S.A. No.23 of 2010, that since according to the second defendant in the suit, the copy of the book intended to be published by the first defendant in the suit was stated to have been obtained from the appellant in O.S.A. No.23 of 2010 and since he had personal knowledge about the said issue, he should also allowed to be impleaded as a party in the suit as well as in the application. The application for impleading the appellant in O.S.A. No.23 of 2010 was resisted by both the respondents in O.S.A. No.232 of 2009. In the order dated 29.01.2009, the learned Judge after considering the rival contentions of the parties, noted that the issue before the Court related to the ownership of the copyrights of the work of Thanthai Periyar, that the appellant in O.S.A. No.23 of 2010 did not claim exclusive copyrights over the work of Thanthai Periyar, and his claim that he assisted in the Herculean task of compiling the work of Thanthai Periyar and since it was the admitted case of the appellant trust that he is under their control, at best, he can be examined as a star witness in the suit and he cannot claim any participatory role in the lis which is seriously contested by the respondents in O.S.A. No.232 of 2009. Based on such a decision the learned Judge held that there was no right for the appellant in O.S.A. No.23 of 2010 to invoke Order 1 Rule 10 for getting himself impleaded in the suit as well as in the application. The learned Judge therefore held that it was neither a necessary party, nor a proper party to the suit which can be thrashed out even without the association of the appellant in O.S.A. No.23 of 2010 as a party. 6. Having heard Mr.K.V.Venkatapathy, learned Senior Counsel for the appellant in O.S.A. No.23 of 2010, learned counsel for the respondents 2 and 3 and having perused the order in A.No.4331 of 2008, we are not inclined to take a different view from what has been stated by the learned Judge in the order dated 29.01.2009 passed in Application No.4331 of 2008. As rightly held by the learned Judge, the core issue involved in the suit, as well as, in the application related to ownership of copyrights of the literary works of late Thanthai Periyar, as claimed by the appellant trust vis-a-vis the respondents. The sum and substance of the claim of the appellant in O.S.A. No.23 of 2010 is that there was a statement made by one of the https://hcservices.ecourts.gov.in/hcservices/ respondents that copy of the compilation of the literary works of Thanthai Periyar was collected from the appellant in O.S.A.No.23 of 2010 and according to the said appellant, such compilation was owned by the appellant trust. On that basis, it cannot be even remotely held that the said appellant in O.S.A. No.23 of 2010 will become a necessary and proper party. It cannot also be held that without the presence of the said appellant, the court will not be able to effectively adjudicate upon all the questions involved in the suit. As has been noted by the learned Judge, based on the slender claim of the appellant in O.S.A. No.23 of 2010, there was no scope to hold that it was absolutely necessary to order the impleading of the said appellant. We, therefore, do not find any merit at all in the said appeal seeking to challenge the order of the learned Single Judge dated 29.01.2009 passed in Application No.4331 of 2008 and the appeal, therefore, accordingly stands dismissed. 7. When we consider the challenge made in O.S.A. No.232 of 2009, we find that the application for interim injunction made in O.A. No.940 of 2008 was elaborately heard by the learned Single Judge, who, in his eloquent judgment, ultimately held that there was no case made out to continue the interim injunction granted earlier. The learned Judge also held that the issue raised is covered by the exemption provided under Section 52(1)(m) of the Copyright Act, 1957 and dismissed the application. 8. We heard Mr.A.Thiyagarajan, learned senior counsel for Mr.V.R.Shanmuganathan, counsel for the appellant trust, Mr.S.Doraiswami, learned counsel for the first respondent and Mr.R.Thiyagarajan, learned senior counsel for Mrs.Gladys Daniel, learned counsel for the second respondent. 9. Mr.A.Thiyagarajan, learned senior counsel, in his submissions contended that the Memorandum and Articles of Association as well as the Rules and Regulations of the appellant trust, which was registered under the Societies Registration Act on 23.09.1952 contained a Clause viz., Clause 22 in the Rules and Regulations, which specifically stated that the Life members of the Executive Committee of the appellant trust alone shall be the trustees of the properties already endowed by Thanthai Periyar as well as the properties to be acquired thereafter for the institution, which made it clear that the literary works of Thanthai Periyar, which were part of the objects of the the appellant trust as per the Memorandum and Articles of Association, and consequently, such literary works of Thanthai Periyar, which were published in the various journals between 1925 and 1949 were owned by Thanthai Periyar inclusive of its copyrights and that after his death on 24.12.1973, such ownership continue to vest with the appellant trust and therefore, the compilations of such writings and speeches of Thanthai Periyar made at the instance of the appellant trust should be held to be owned by the appellant trust with its copyrights and consequently, the https://hcservices.ecourts.gov.in/hcservices/ respondents should be injuncted from making the intended publications as reported by them in the "Kumudam Reporter" dated 21.8.2008. 10. In support of such submissions, the learned counsel also relied upon the following instances:- (i) The editorial in the Newspaper 'Viduthalai' dated 02.10.1952, in which Thanthai Periyar was an Editor, wherein a reference was made to the properties of the appellant trust. The said editorial contained the statement to the effect that, "mg;nghJ !;jhgdj;jpw;F cs;s brhj;Jf;fs; vd;gjhf mjpy; Fwpg;gpl;oUe;jJ xU yl;r U:gha;jhd;/ mjhtJ rpy fl;ll';fs;. 2 mr;R epiya';fs; 2 gj;jpupiffs;. g[j;jf';fs; cupikfs;. buhf;f epjpfs; Mfpait. md;iwa epytug;go/@ (ii) The Articles published in the Annual Digest of the appellant trust magazine dated 2.5.1983 which stated that the compilations of the writings and speeches and anecdotes of Thanthai Periyar from the year 1925 was carried out under the leadership of Puzhavar Ko. Imayavaramban and along with him several other persons. (iii) A news item in the daily newspaper called Viduthalai dated 22.11.2000 which stated that the articles published in Kudiyarasu between the years 1928 and 1931 had been compiled in a compact disk form. (iv) The announcement made by the second respondent in "Kumudham Reporter" dated 21.8.2008, wherein it was stated to the effect that, @Fo muR ,jiHj; bjhFj;J btspapl fle;j 26 tUl';fshf tPukzp ve;j Kaw;rpa[k; vLf;ftpy;iy/ ,e;jf; fl;Liufisj; bjhFf;f j";ir gFj;jwpthsu; fHfj;jplkpUe;J xU gpujpia bgw;W eh';fs; btspapLfpnwhk;/@ (v) A Foreword written by one V.Aanaimuthu in a publication called "Periyar E.V.Ra Chinthanaihal", which disclose that Thanthai Periyar agreed on 9.1.1972 to allow him to compile his speeches and writings based on which a compilation was made by him, which he did between September 1972 and February 1973. The said Foreword also stated that in the compilation, the https://hcservices.ecourts.gov.in/hcservices/ signature of Thanthai Periyar acknowledging his approval was also obtained. (vi) The pamphlets with its Annexures 1 to 3 published by the first respondent, which disclose that even as admitted by the first respondent, the writings and speeches of Thanthai Periyar were compiled at the instance of the Dravida Kazhagam, which constituted a Committee under the leadership of Imayavaramban in the year 1983, who handed over the compilation to the appellant trust. 11. Based on the above instances, learned senior counsel contended that what was sought to be published by the respondents on 17.09.2008, as reported in the Magazine "Kumadham Reporter" dated 21.8.2008 was nothing, but the verbatic reproduction of the compilation made by the appellant trust, for which the copyright was owned by it. Learned senior counsel submitted that having regard to the Clause in the Memorandum of Association as well as in the Rules and Regulations of the appellant trust, when the writings and articles of Thanthai Periyar were part of the properties of the appellant trust, right from the date of its inception, the said right which was originally owned by Thanthai Periyar as founder member of the appellant trust got transferred with all the rights existed in it, including the ownership of the copyrights to the appellant trust and after the demise of Thanthai Periyar, the entire compilation made by the appellant trust should be held to be the property of the appellant trust with all the copyrights ownership embedded in it. Learned senior counsel contended that the respondents had no right to reproduce the said compilation as claimed by them in the pamphlets as well as in the reported news dated 21.8.2008 without the consent of the appellant trust and therefore, the appellant trust is entitled for the injunction as prayed for in the application. 12. Learned senior counsel while referring to Section 17(a) and (cc) of the Copyright Act, 1957, contended that the appellant trust being the owner of the copyrights and having regard to Section 18(2) of the Act, is entitled to all the rights as were available to the author, viz., Thanthai Periyar. Learned senior counsel also contended that as per Section 22 of the said Act, the works of Thanthai Periyar being literary works, for next 60 years, after the year in which Thanthai Periyar died, the right in favour of the appellant trust continued to exist, during which period, there was no right to anybody else, much less the respondents herein to infringe such rights. Learned senior counsel, therefore, contended that when neither the appellant trust nor the Thanthai Periyar himself did not transfer such right in favour of the respondents, the attempt of the respondents to publish the compilations would amount to infringement of such copyright, as stipulated under Section 51 of the Act and consequently, the appellant trust is entitled for the injunction as https://hcservices.ecourts.gov.in/hcservices/ prayer for. 13. Learned senior counsel relied upon the following decisions in support of his submissions. (i) AIR 1955 Madras 391 (B.Govindan vs. E.M.Gopalakrishnan Kone); (ii) AIR 1961 Madras 114 (Associated Publishers (Madras) Ltd. vs. K.Bashyam); (iii) 2003 (5) Bombay CR 404 (Zee Telefilms Ltd. and Film and Shot vs. Sundial Communications Pvt. Ltd.); and (iv) 2008 1 SCC 1 (Eastern Book Company vs. D.B.Modak). 14. As against the above submissions, Mr.R.Thiagarajan, learned senior counsel appearing for the second respondent, after referring to the prayer in the plaint submitted that while the prayer related to the so called copyrights of the appellant trust in Kudiyarasu and other scripts, books, publications etc., the claim based on the said compilations of the speeches and articles of the Thanthai Periyar would show that there was no definite claim in the prayer. According to the learned senior counsel, the prayer is as vague as it could be and therefore, when the prayer in the main suit itself is open to doubt, there was no scope to consider the interim prayer applied for in the application. 15. Learned senior counsel attempted to point out that the pleadings of the appellant trust does not disclose as to what was the particular literary work with reference to which it owned any copyrights and which right was attempted to be infringed by the respondents. According to the learned senior counsel for the second respondent, unless the appellant trust satisfy the stipulation contained in Section 16 of the Act, namely, ownership of copyrights and the appellant trust satisfies the other provisions, namely, Sections 17, 18, 19 and 20 of the Act, there would be no scope for granting any relief, much less, the relief of injunction as prayed for. Learned senior counsel while referring to the original publication of Kudiyarasu and its reproduction in the typed set of papers filed by the respondents, pointed out that it was nothing, but verbatim reproduction of printed material, which was published in the Kudiyarasu dated 19.01.1930, that when the appellant trust came to be established in the year 1952, the publication of Kudiyarasu ceased to exist, that even indisputably Thanthai Periyar was the Editor of Kudiyarasu only upto to 1930 and therefore, there was no scope for the appellant trust to claim ownership of the writings of Thanthai Periyar. Learned senior counsel contended that having regard to the fact that the writings of Thanthai Periyar were all of the year upto 1930, as Editor of Kudiyarasu, Section 5(1) and (2) of the Indian Copyright Act, 1914, alone was applicable, that going by Section 5(1) and (2) of the said Act, unless the appellant trust had the assignment of Thanthai Periyar's literary works in writing, as mentioned in the proviso, there was no right in the appellant trust https://hcservices.ecourts.gov.in/hcservices/ to claim for any relief, much less, the relief of injunction as prayed for in the suit as well as in the application. According to the learned senior counsel, since Thanthai Periyar expired on 24.12.1973, going by the proviso to Section 5(2) of the 1914 Act, after 25 years of his death, i.e., after 24.12.1998, the literary works of Thanthai Periyar came into public domain and the appellant trust can have no claim in the literary works of Thanthai Periyar. Learned senior counsel further contended that even going by the Copyright Act, 1957, having regard to Section 52(1)(m) of the said Act, a mere reproduction of an article published in the newspaper magazine or other periodicals, will not amount to infringement of copyright, unless the author of such article expressly reserved to himself such right of reproduction. Learned senior counsel therefore, contended that in the absence of any such reservation placed to the satisfaction of this Court, no injunction could have been granted and at any rate at the instance of the appellant trust. 16. Mr.S.Doraisamy, learned counsel appearing for the first respondent submitted that the claim of the appellant that they constituted a Committee to collect the literary works of Thanthai Periyar and compiled them was not true. On the other hand, the followers of Thanthai Periyar joined together and collected the materials from the original text of Kudiyarasu published from the year 1925 onwards. According to the learned counsel, it was therefore not the collection of the appellant. He also placed reliance upon certain documents placed before the Court, such as xerox copies of the original publication of Kudiyarasu dated 02.05.1925, 19.01.1930 and 12.11.1933 and contended that while the respondents had possession of the originals of such publication of the newspaper, the appellant did not even have the originals. The learned counsel referred to an advertisement made on behalf of the appellant dated 20.12.2008, in which the appellant issued a general notice asking any one who is in possession of Kudiyarasu Weekly of the years from 1925 to 1928 and 1946 to 1949 to produce to enable them to make a compilation from the said Weekly as well as another Journal called "Viduthalai". The learned counsel would therefore contend that so far the respondents have published one set of collection of literary works of Thanthai Periyar of the year 1925 in November 2003 and another set of publication in September 2005, which contained the literary works of Thanthai Periyar published in the year 1926. He would contend that the present proposed publication of the respondents in the year 2008 is going to be their next edition while the appellant brought the first edition of their publication only in the year 2009. Learned counsel also pointed out by referring to the names of the persons, who made the compilations by referring to the Editors Report in the first edition published in November 2003. The learned counsel therefore contended that the claim of the appellant that it was the reproduction of the compilation made by the appellant is not true. Learned counsel made a specific reference to Thanthai Periyar's statement itself, as published in one of the https://hcservices.ecourts.gov.in/hcservices/ publications of Viduthalai dated 31.01.1951, which was to the following effect: @bghpahhpd; vGj;Jk; ngr;Rk; ve;j E}iy vLj;Jf; bfhz;lhYk;. mjd; kjpg;g[ me;j E}ypd; gaid msthff; bfhz;lnj xHpa. Mjid Mf;fpdtidnah. mjpy; cs;s bja;tPfj; jd;ik vd;gijnah. ,yf;fz. ,yf;fpa msitnah. mikg;ignah. mw;g[jj; jd;ikianah msthff; bfhz;ljhf MfhJ/@ 17. By referring to the above statement of Thanthai Periyar himself, learned counsel contended that the first respondent in his counter affidavit has also pointed out that the ideologies of Thanthai Periyar were to educate the people in order to bring out a caste less society and thereby maintain equality among the human kind and that he wanted his writings and ideologies to be propagated to the entire mass and was never intended to be kept as a secret or to be retained by any particular group for their personal gain. The learned counsel further contended that in paragraph 22 of the counter affidavit, the first respondent has furnished the various sources, numbering 31, from whom the parts of Kudiyarasu issues were collected by the first respondent and that the purpose of such collection and present publication of the collected literary works of Thanthai Periyar were solely with a view to propagate the ideologies of Thanthai Periyar and not to make any monitory gain. The learned counsel would therefore contend that the contention of the appellant that the respondents attempted to steal the appellant's compilation for making the intended publication on 17.09.2008 was not correct and therefore the rejection of the appellant's injunction application was justified. 18. The learned counsel relied upon the decisions reported