IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 AS.No. 969 of 1998() -------------------- OS.2/1990 of ADDITIONAL DISTRICT COURT,ALAPPUZHA. .................... APPELLANT/1ST DEFENDANT ------------------------------------------ D.ASOKAN, AKSHARAMALA ALAPPUZHA – PUBLISHER BY ADV. SRI.R.AZAD BABU RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT: ----------------------------------------------------------------------- 1. MARTIN EASESSERIL, THUMPOLLY ALAPPUZHA 2. THE ORIENT LITHO PRESS, SIVAKASI REP BY ITS MANAGING PARTNER - PRINTER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON 30/09/2011 DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------------------------ AS No.969 of 1998-B ------------------------------------------------------ Dated this the 30th day of September 2011 Judgment The defendants in OS No.2/90 before the District Court, Alappuzha for infringement of copy right, are the appellants. 2. The plaintiff claimed to be the author of the book “Dampathya Sasthram” published in October 1989. He owns copy right of the book and in the publication itself, it is clearly mentioned that the work exclusively belongs to him. The first defendant is a book seller, carrying on business in the name and style of “Aksharamala” in Alappuzha and the said concern undertook the publication of the first issue of the above said book. The second defendant is a printer. The agreement between the parties was that the first defendant can publish and sell 5000 copies of the first AS 969/98 2 edition of the book and the understanding was that 20% royalty would be paid to the plaintiff on the face value of the book. The plaintiff claimed that the first edition was completely sold out, but he was paid only Rs.25,000/-. Instead of paying the balance amount, the defendants challenged the copyright of the plaintiff and it is alleged that the second defendant printed 5000 more copies of the book without the knowledge, permission and consent of the plaintiff. The said act done by the defendants was without any authority and since royalty was not paid to the plaintiff, the defendants have committed infringement of the copyright. On the said allegation, the suit was laid. 3. The first defendant resisted the suit, pointing out that the claim of the plaintiff that he is the owner of the copyright is without basis. The plaintiff had taken long leave from his profession. When the first AS 969/98 3 defendant disclosed his desire to publish a book i.e, “Dampathya Sasthram”, the plaintiff agreed to do the work provided the materials are made available to him by the first defendant. Accordingly, a large number of reference books were made available to the plaintiff and the understanding was that the first defendant would pay a sum of Rs.1,00,000/- for the work done by the plaintiff. A sum of Rs.39,340.35 has already been paid by the first defendant. According to the first defendant, he has also met the expenses incurred by the plaintiff for writing the book . It was contended on behalf of the first defendant that the book “Dampathya Sasthram” is not an original work and it is only a compilation of some materials made available by the first defendant. The first defendant denied the allegation that they had printed and published additional 5000 copies of the book without the permission of the plaintiff. Pointing out that AS 969/98 4 the plaintiff has no cause of action, the first defendant prayed for dismissal of the suit. 4. The second defendant resisted the suit by filing a separate written statement, pointing out that he was unaware of the arrangement and agreement between the plaintiff and the first defendant and that all that he has done was to print 5000 copies of the book as demanded by the first defendant. He would point out that nearly 2000 copies are still lying with him and he has not been paid his charges for the printing of the books. He dined any liability to the plaintiff. 5. On the above pleadings, issues were raised. The evidence consists of the testimony of PWs1 to 5 and documents marked as Exts.A1 to A9 series from the side of the plaintiff. The defendants had DWs 1 to 3 examined and Exts.B1 to B14 marked. AS 969/98 5 6. On an evaluation of the evidence in the case, the trial court found that the allegation that the defendants had published additional 5000 copies was not proved. The trial court also found that there was no evidence regarding the agreement regarding the royalty to be paid to the plaintiff. But, accepting the evidence given by PWs 2 to 4, the lower court fixed the royalty @ 15% and passed a preliminary decree, which reads as follows : “In the result, a preliminary decree is passed in the following terms : a) Plaintiff's copyright of the book “Dampathya Sasthram” is declared. b) Plaintiff is entitled to get 15% royalty of the face value of the books sold after settlement of account. c) Plaintiff is entitled for settlement of account with 1st defendant. d) The defendants are restrained by an order of permanent prohibitory injunction from printing, AS 969/98 6 publishing, distributing or selling the book “Dampathya Sasthram” except the 5000 copies of the books already printed in 1990 as the first edition. e) Both parties shall bear their respective costs. f) Plaintiff is at liberty to apply for passing final decree for settlement of accounts as stated in the judgment within 6 months.” It is the said judgment and decree that is assailed in this appeal. 7. The learned counsel for the appellant recited two points for consideration. They are : (1)The finding of the court below that the plaintiff is the owner of the copyright of the book is unfounded and is illegal. (2)In the absence of evidence, the court below ought not to have fixed the royalty @ 15% as is done now. Issue No.1 : The learned counsel for the appellants pointed out that what the plaintiff has done was only to compile the materials made available by the first AS 969/98 7 defendant and he had provided all the materials for the same. There was no original work done by the plaintiff and all that he has done was to extract materials from the reference books made available to him by the first defendant as directed by the first defendant. Therefore, it could not be said that the plaintiff enjoyed copyright over the book. 8. The court below has considered the above aspect in considerable detail. The plaintiff claimed that he had written the book “Dampathya Sasthram” and that it was his work. The book consists of two parts and they are marked as Exts.A1 and A2. He claimed to have referred to a large number of books and authorities for bringing out the book. He denied that he was acting as per the directions of the first defendant and he was only collecting materials from the sources made available by the first defendant and as per his directions. Though the AS 969/98 8 materials were made available by the first defendant, the act of writing the book and bringing it out in the manner as it now stands, is the work of the plaintiff and so, he is entitled to have copyright of the book . 9. It is true that the so-called book namely “Dampathya Sasthram” of which the plaintiff claimed to be the author is not an original work. It is a collection of materials from various sources. But, there is nothing to show that the plaintiff was working as per a contract of employment with the first defendant. There is also nothing to show that the plaintiff had no freedom in the compilation and that he was to act as per the dictates and directions of the first defendant. It would appear from the evidence that he had the freedom to choose the materials which should form part of his book or in other words, he had independence in deciding the manner and method of doing the works. Under such AS 969/98 9 circumstances, the trial court was fully justified in coming to the conclusion that the copyright of the book belongs to the plaintiff. That finding does not call for any interference. Issue No.2 : There is absolutely no evidence regarding any agreement for payment of royalty to the plaintiff. The plaintiff claimed 20% royalty and he examined PWs 2 to 4 to show that it is common in the industry to pay royalty and that is the accepted norm of payment for the work which is published as far as the owner of the copyright is concerned. The court below simply assessed the royalty at 15% and passed a preliminary decree which is already made mention of. The lower court has omitted to note that neither the plaintiff nor the first defendant has kept accounts regarding the payments received by the plaintiff or the expenses stated to be met by the first defendant in collecting the AS 969/98 10 materials. It cannot be doubted that the plaintiff must be adequately remunerated for his work. The direction now in the preliminary decree for settlement of accounts will not take either parties anywhere. The settlement of accounts is virtually impossible since neither party has account with them. However, it may be noticed that it is admitted by the first defendant that the amount agreed upon between the plaintiff and himself for the work to be done by the plaintiff is Rs.1 lakh. There is no dispute regarding the fact that the plaintiff has completed the work of bookbinding and the book has been published. The plaintiff admits that he has received a sum of Rs.25,000/-. Even though the first defendant has claimed that he has paid Rs.39,340.35 to the plaintiff, there is no evidence regarding the same. It is for the first defendant to establish that he has in fact paid Rs.39,340.35. He also claims that he is entitled to set AS 969/98 11 off the expenses incurred by him on behalf of the plaintiff for the compilation of the work. 10. In the absence of any evidence to show that the first defendant has paid 39,340.35, one can only accept the version given by the plaintiff that he has been paid only Rs.25,000/-. The claim made by the first defendant that he is entitled to set off for making things available to the plaintiff and also for various other aspects, cannot be countenanced. 11. The result is that the balance amount of Rs.75,000/- remains to be paid to the plaintiff. As already noticed, no purpose will be served by passing a preliminary decree and then waiting for a final decree to be passed. In the facts and circumstances of the case, this is a case where final decree can be passed at the first instance itself. AS 969/98 12 In the result, this appeal is partly allowed. The plaintiff is entitled to realise a sum of Rs.75,000/- with 6% interest from the date of suit till the date of realisation from the first defendant and his assets. There will be no order as to costs in this appeal. P.Bhavadasan, Judge sta AS 969/98 13