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Analysing Najma Heptulla v Orient Longmann Ltd

Case: Najma Heptulla v Orient Longmann Ltd And Ors. (AIR 1989) Del 6

Facts:
  • The case is regarding the interim injunction under Order 39, regarding the publishing of the books. The plaintiff claims herself to be the legal heir of Maulana Azad, the author of the book, and has filed the suit of redition of accounts and injunction. The main relief is plead against the M/s. Orient Longman Limited, a publisher and Professor Humayun Kabir, who is the close associate of Maulana Azad.
     
  • The plaintiff is of the view that Maulana Azad is the author of the book “India Wins FREEDOM” and whereas, defendant no.6, who is daughter of Professor Humayun Kabir, is of the view that he is the real author of the book. The manuscript of the alleged book was ready for publication in November, 1957. But before, it could be published, Maulana passed away on 22nd February, 1958. On 25th March 1958, Professor Kabir wrote to National Archives that if they were willing to act as trustees of the entire manuscript including 30 pages which have not been published till today but were required to be published after 30 years of Maulana Azad's death i.e. after 22nd February, 1988. A similar letter was written by Prof. Kabir on 3rd April, 1958 to the National Library, Calcutta. On 29th May, 1958, the two heirs of Maulana were made to sign the similar documents stating that consent to the arrangements which had been arrived at for the publication of the aforesaid book, excluding the 30 pages which were lying in Healed cover with Orient Longman Limited. On 2nd September 1958, agreement was made by Professor Kabir and the Orient Ltd. For the publication of the book excluding the 30 pages which were sealed, wherein it was mentioned that Professor Kabir was the composer of the book and he had the notes dictated by Maulana Azad.
     
  • The agreement was stated as "IT is further agreed and understood that the Publishers shall have the first option to publish the complete book as originally composed and now lying under sealed cover with the National Archives New Delhi and the National Library, Calcutta when the seals are broken on 22nd February, 1988 as mentioned in the preamble of this agreement." Fatima continued to get the part of royalty and after her death, Hamid Ali.
     
  • The important fact is that after Maulana Azad’s death, Fatima Begum and Noorudin Khan, came to settlement of the entire property, except the rights of the book. Nooruddin claimed that Maulana had orally given all copyright of the book to him and that was disputed by Mohmad Tahir on behalf of Fatima Begum. But it was held that for the copyright of all published and unpublished books of Maulana only Nooruddin was entitled.
     
  • The Orient Ltd. Informed Nooruddin that the seal of the book was to be broken and the first publishing right would be with them, and Nooruddin would continue to get his part of royalty and this was signed by Nooruddin. A similar letter was also written to Nahid Siddique but he was surprised to hear that the rights were to Orient Ltd.

Contentions:
Plaintiff:
  • The plaintiff contends only that the publication rights of the book are solely of the heirs of Maulana, and as the plaintiff does not desire to publish the book and so the seal of it should not be broken. Further Professor Kabir had no authority to enter in such an agreement.

Defendants:
  • Professor Kabir was the sole author of the book, and hence, he has the authority to enter in the agreement.
  • Even if Maulana had any copyright in the book, then also Maulana had consented to the arrangement by Professor Kabir, can consent any agreement.
  • Also, only Nooruddin had the rights to copyright, and as he has consented, for the publication of entire book by Orient Ltd.

Issues:
  • Who is the author of the book India wins FREEDOM?
  • Whether Professor Kabir had any authority to execute the agreement with Orient Longman?

Held:
  • The court took into consideration term author as per Sec.2(d) and Sec.55(2) of the act. It is observed that there is no doubt that Maulana is the author of the book, but from the preface, it can be inferred that Professor Kabir, is also an author, definitely not a sole author, but both are the joint authors. But, it was also of that, Maulana used to only give ideas in Urdu, and based on that Professor Kabir had made notes and that was published as the book.

    The court relied on the case of Donoghue v. Allied Newspapers Ltd., (1937) 3 All. E.R. 503, where the racing secrets of Steve Donoghues were not copyright under Steve Donoghues, as the expression had been penned down by the journalist. Also, in Walter v. Lane, the court held that when the reporter publishes about the proceedings, it also adds the punctuation marks and puts in efforts, so the reporter will get the copyright. The reporter not only sets down what is to be published, but also arranges it in order and hence preparation of report requires more than mechanical skill.

    Thus, here Professor Kabir, had done all the work of translation, editing etc. thus, he can be regarded as the sole author. But, Professor Kabir in the agreement with Orient Longman had mentioned to give 50% royalty to the legal heirs of Maulana and hence, he himself did not consider that he was the sole author of the book. Hence, both were joint authors of the book.
     
  • The court held that as per Sec.18 of the Act, the owner has the right to assign his Copyright to any other person and Sec.19 of the Act provides the way of assignment, which could be in written form. When, there are joint authors and one of the authors is dead, then the consent of the legal representatives of the deceased heir is necessary. Here, the evidence is shown, that during the time of agreement, it was ratified by Fatima Begum regarding the agreement and publication of the books.

    If the ratification is not express, even then the principles of promissory and equitable estoppel says that she was aware of agreement and she was also receiving the royalty. Hence, it can be inferred that she had given her consent. It was also written explicitly in the preface regarding the 30 pages that were sealed and to be published after 30 years.
     
  • Hence, as the plaintiff has enjoyed the fruits of royalty and so principle of estoppel will apply. Further, there was no irreparable loss or injury to the plaintiff. Hence, the injunction is not granted. But, the Orient Ltd. Should pay Rupees One Lac to the plaintiff as security.

Analysis:
  • The Court has relied on the judgment of Donoghue v. Allied Newspapers Ltd. and Walter v. Lane and given the distinction between the speaker and reporter and who will get the copyright. The court is of the view that a speaker, expresses his thoughts and therefore that is an idea. But, the reporter, makes the notes, arranges it and expresses it in the way, he perceives it to be and thus, the work is not mere a mechanical work. It involves skill and thus, the reporter is entitled to copyright. Hence, the term ‘author’ as discussed by the Court, also involves the work of translation, skilfully arranging the ideas of someone. The court has focussed on the characteristics that work be included in author.
  • The other thing discussed by the court is regarding the rights of a joint author. The court has discussed regarding the dead author’s consent regarding the assignment of copyright, would be of the legal heirs or the legal representative.
  • The court has also elaborated on the Principle of Promissory and Equitable Estoppel, where one party has changed his position in relation to another, then the other person cannot eventually alter his position. Also, once, the benefit is enjoyed by the person, then he cannot deny the agreement thereafter.
  • Thus, the definition of author and who would be author and joint author and assignment rights of copyright of the author has been discussed.

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