Madras High Court
P.R. Viswanatha Iyer vs A. Muthukumaraswami Pillai And Ors. on 22 November, 1946
Equivalent citations: (1947)1MLJ382
JUDGMENT Wadsworth, J.
1. These two appeals arise out of an alleged breach of copyright in connection with the publication known as the Tinnevelly Vakya Panchangam which is a Tamil almanac giving information necessary for casting horoscopes, fixing fasts, festivals and ceremonies with reference to the phases of the moon and other relevant astronomical materials. It is distinguishable from an ordinary almanac in that it is prepared on the basis of calculations based on some 248 Vakyams or aphorisms embodying rules of astrological science. It is common ground that this particular Panchangam has been published for over 60 years from manuscripts furnished by the first defendant and his father. The publisher was up to 1940 the second plaintiff in the suit out of which Appeal No. 301 of 1945 arises.
2. The first defendant then quarrelled with the second plaintiff and as a result of that quarrel, he entered into an agreement, Ex. P-1, dated 20th February, 1941, with the first plaintiff. Under this agreement the first defendant was to cast the almanac known as the Tinnevelly Vakya Panchangam which he has been composing for about 60 years and deliver the manuscript to the first plaintiff for printing and publication for a period of five years from the year Chitrabanu, 1943, to the end of the year Vyaya, 1946. The first plaintiff was to pay the first defendant Rs. 350 per annum for his work. The agreement fixes the date within which the manuscript should be delivered in each year and prohibits the first defendant from writing or delivering a copy of the almanac to any one else. It is also stipulated that the first defendant should have the right to insert in the almanac eight pages of matter in Tamil and eight pages of matter in Grantham in addition to the almanac proper, and should himself be given 100 copies of the published work. Then follow the provisions regarding the manner of payment of the fee and the adjustment of advances.
3. On the basis of this agreement the panchangams for 1942 and 1943 were published; but in May, 1943, the first defendant sent a notice, Ex. P-8, to the first plaintiff alleging that the latter had broken the agreement by printing on the panchangam the name of the second plaintiff as publisher,knowing that the first defendant had broken off relations with the second plaintiff and wished to have no more to do with him. The first defendant called upon the first plaintiff to withdraw from circulation all copies of the calendar bearing the second plaintiff's name and to undertake not to use the second plaintiff's name thereafter. If he was unwilling to give this undertaking, the first defendant proposed to rescind the contract. At the time when this notice was sent, the first defendant had already received two small advances in respect of the almanac for the year Dharana, 1944. The first plaintiff replied to this notice denying that there was any understanding that no other person's name should appear on the almanac and claiming the right to assign to the second plaintiff. On 27th August, 1943, the first plaintiff sent a money order for Rs. 80 due to the first defendant under the contract. This money order was refused whereupon the first plaintiff filed a suit against the first defendant, O.S. No. 403 of 1943 out of which Second Appeal No. 750 of 1945 arises. In that suit the individual whom we have referred to as the second plaintiff was not a party, and the suit as originally framed sought relief only against the first defendant, the prayer being for specific performance of the contract to supply manuscripts of the panchangam for the three years for which the agreement still had to run, or alternatively to pay Rs. 900 as damages for breach of the contract. The first plaintiff also filed an application in which he prayed for an injunction restraining the first defendant from getting his manuscript published by any one else. In opposition to that injunction application, the first defendant filed a counter-affidavit in which he asserted his physical inability to continue the production of the panchangam and stated that his grandson, the second defendant, was now casting a panchangam which was to be published by the third defendant under an agreement, dated 20th August, 1943. As a consequence of this statement, the plaintiff amended his plaint by adding a paragraph referring to the first defendant's counter-affidavit and alleging that the second defendant was incapable of casting a panchangam and that the first defendant was seeking to circumvent the agreement and interim injunction by publishing his panchangam in the name of the second defendant through the agency of the third defendant, who is alleged to have purchased the right to publish it when fully aware of the suit agreement. A prayer was also added that the defendants be restrained from publishing the Tamil Vakya Panchangam for the years covered by the agreement either in their own names or in the names of other persons, and damages were sought from all the defendants.
4. It is to be noted that there is no assertion in the plaint as amended that the third defendant had been instrumental in causing the first defendant to break his contract with the plaintiff. The only assertion is that the third defendant knowing of the agreement between the first defendant and the first plaintiff was attempting to publish the first defendant's panchangam under the name of the second defendant. While this suit was pending, the third defendant did publish a panchangam for the year Dharana. The publication was got up in a manner very similar to that of the previous years' almanacs even to the extent of continuing the number of the series. Whereas the previous almanacs described the work as that of Venkata-gurunatha Sastri, son of Ramalinga Joshier, the third defendant's publication printed these two names in large type adding in small type the name of the second defendant described as grandson of the first defendant.
5. This suit went to trial and resulted in a decision that the first defendant had committed breach of the contract and that there was no ground on which a decree for specific performance or injunction could be granted, especially as the third defendant had given an undertaking on the interim injunction petition to keep regular accounts of the sale of his panchangam and not to sell more than 5,000 copies out of the 15,350 which he had printed. On the question of damages, the trial Court held that the loss may be taken as Rs. 300 per annum, the figure mentioned in the plaint and that the third defendant knowing of the contract between the principal parties must have procured the breach thereof and fraudulently published the panchangam in collusion with the first and second defendants. The learned District Munsiff also found that no action could be taken under the Indian Copyright Act, because by Section 13 of the Act, any proceeding regarding the infringement of the copyright had to be filed in a District Court. In the result he gave a decree for damages amounting to Rs. 300 for the first year against defendants 1 to 3 and Rs. 600 for the two remaining years against the first defendant alone. This decision was confirmed in appeal, and against the appellate decree Second Appeal No. 750 of 1945 is preferred. As already stated, the second plaintiff in the copyright suit was not a party to the contract suit, though he was the principal witness for the plaintiff and has been described by the trial Judge as the real plaintiff in the suit.
6. Three days after the judgment of the District Munsiff, in the contract suit, the two plaintiffs together filed O.S. No. 1 of 1944 in the District Court against all three defendants claiming that by the agreement Ex. P-1, dated 20th February, 1941, the first defendant had contracted to assign to the first plaintiff the exclusive right of publishing his Tinnevelly Vakya Panchangam for five years beginning on 13th-April, 1942, that this agreement operated to assign the copyright in respect of each year's compilation, as and when the manuscript was ready, to the first plaintiff absolutely and that to the knowledge of the first defendant, the benefit of the agreement had belonged all along and still belonged to the second plaintiff. The plaint goes on to recite the facts regarding the interchange of notices in 1943 and the repudiation of the contract by the first defendant, and alleges that the first defendant's notice was sent at the instance of the third defendant who had arranged with the first defendant to publish the first defendant's almanac for the year Dharana in the name of the second defendant. The plaint alleges that in the suit for damages, the amount claimed was restricted to Rs. 300 because of the poverty of the first defendant. It quotes the finding of the District Munsiff in O.S. No. 403 of 1943 that the manuscript published by the third defendant as the work of the second defendant for the year Dharana was, in fact, the work of the first defendant and alleges that all three defendants had jointly infringed the copyright which was vested in the plaintiffs. The plaintiffs therefore prayed for an injunction to restrain the defendants from publishing any panchangam exhibiting in any manner the name of the first defendant for the two remaining years of the contract period and prayed for an account of the profits made by the third defendant by the sale of the panchangam for the year Dharana and the delivery of the unsold copies of this publication. This suit was tried by the District Judge along with the hearing of the appeal from the decree of the District Munsiff, the evidence taken by the District Munsiff being by consent treated as the evidence in the copyright suit. The latter suit resulted in a decree for the payment of Rs. 1,000 as damages by the third defendant on the basis of the estimated profits from the sale of the panchangam for the year Dharana, and there was an injunction restraining the defendants from publishing any panchangam for the two remaining years. The unpublished copies had already been surrendered.
7. Against this decision Appeal No. 301 of 1945 has been preferred by the third defendant who is also the appellant in the connected second appeal. As the two appeals involve the same evidence, they have been heard together. The plaintiffs have settled both the actions with the first and second defendants, and the last two years of the period covered by the agreement having elapsed, there is no longer any question of an injunction. We are now concerned only with the decrees against the appellant-third defendant for damages.
8. We find it difficult to sustain the decree against the appellant in the second appeal. Although in the copyright suit there is some assertion that the appellant had procured the breach of the contract by the first defendant, no such assertion is found in the plaint in O.S. No. 403 of 1943, where all that is alleged is that the third defendant with the knowledge of the contract had arranged with the first defendant to publish the first defendant's manuscript which under the contract should have been delivered to the first plaintiff. We have been taken through the evidence in the case, and the respondents have been unable to indicate any substantial evidence that it was at the instance of the third defendant-appellant that the first defendant broke the contract. The truth seems to be that it was after the first defendant had repudiated his contract with the first plaintiff that he induced the third defendant to publish the first defendant's manuscript in the name of the second defendant. No doubt the third defendant must have known that the first defendant was acting in breach of his contract' with the first plaintiff; but the third defendant was not a party to that contract, and unless it is both pleaded and proved that the third defendant instigated or procured the breach of the contract, he cannot be made liable in damages for the first defendant's breach. In this view, we allow Second Appeal No. 750 of 1945 with costs throughout and dismiss the suit as against the third defendant.
9. The question arising in the copyright suit require more detailed consideration. It is contended for the appellant, firstly, that the agreement Ex. P-1 does not purport to assign the copyright at all; secondly, that a mere contract to assign the copyright in an unwritten work cannot support an action against the alleged assignee for infringement of copyright. Thirdly it is contended that this panchangam is not a literary work in respect of which copyright exists. Fourthly, it is contended that the suit under the Copyright Act is barred by reason of the adjudication on a similar claim in the earlier suit. Fifthly, it is contended that the decree in the earlier suit proceeds on the basis that the contract between the parties has come to an end, and therefore there can be no foundation for the plaintiffs' claim as owners of the copyright; and lastly the appellant challenges the estimate of the profits of his publication, and contends that in any case credit should have been allowed for the amount of damages decreed against him in the earlier suit.
10. It will be convenient to summarise the relevant provisions of the statutory law on the subject of the existence and transfer of copyright. The Indian Copyright Act, 1914, limits the application of the English Copyright Act, 1911, to India in certain respects with which we are not concerned and provides under Section 13 that " every suit or other civil proceeding regarding infringement of copyright shall be instituted and tried in the High Court or the Court of the District Judge." Section 1 of the English Copyright Act, 1911, recognises the existence of copyright in every original literary, dramatic, musical and artistic work subject to certain restrictions regarding the place of publication of published works and the nationality of the authors of unpublished work, and copyright is defined as " the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever...if the work is unpublished, to publish the work or any substantial part thereof." By Section 2, copyright in a work is deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which by this Act is conferred on the owner of the copyright. Section 5 provides that " subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein." Sub-section (2) of Section 5 provides:
The owner of the copyright in any work may assign the right, either wholly or partially...either for the whole term of the copyright or for any part thereof and may grant any interest in the right by licence, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assigment or grant is made, or by his duly authorised agent.
11. Section 31 provides that:
No person shall be entitled to copyright or any similar right in any literary, dramatic, musical or artistic work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.
12. Section 35(1) of the Act provides that "unless the context requires otherwise, ' Literary work ' includes maps, charts, plans, tables, and compilations."
13. It is not contended and cannot, we think, be contended that there has by reason of the agreement, Ex. P-1, been a legal assignment of the copyright in the Tinnevelly Vakya Panchangam for the three years with which we are now concerned. Such an assignment could only be made by an instrument in writing signed by the owner thereof, and there can be no ownership of the copyright for a non-existent work; and it is not denied that at the time of this agreement the panchangams for the three years with which we are concerned had not been written. The respondents, however, contend that the effect of this agreement is to create an equitable right which would operate as an equitable assignment of each manuscript as and when it comes into existence, and that the publication of such a manuscript by a third party can be challenged as an infringement of copyright by them as the equitable assignees, provided that they join the legal owner of the copyright in the action.
14. It will be convenient first to deal with the contention that Ex. P-1 does not purport to create any rights whether by way of equitable assignment or otherwise in the copyright of the first defendant's work. We are unable to accept this contention. The agreement stipulates for the preparation of manuscripts by the first defendant on certain clearly indicated lines and the delivery of each manuscript, as it is completed, to the first plaintiff, and it prohibits the delivery of such a work to anybody else. The combined effect of these provisions is to confer upon the first plaintiff the sole right of publishing the three panchangams which the first defendant is to write for the three specified years, that is to say, the first plaintiff is given " the sole right to produce or reproduce " these works and such a right is nothing more than a copyright.
15. We can also deal briefly with the contention that an action for infringement of copyright cannot be maintained because the decree in the earlier suit put an end to the contract between the parties so that the plaintiffs ceased to be the equitable assignees of the copyright. The fallacy of this contention lies in the fact that the copyright suit claims damages for an infringement alleged to have been committed while the earlier suit was under preparation. At that time, if the plaintiffs had, in fact, acquired the sole right to publish the first defendant's panchangam for the year Dharana, they must be entitled to sue for damages for the infringement of that right by the third defendant, notwithstanding the fact that as against the firs t defendant, the plaintiffs have successfully claimed damages for the breach of the contract which led to the infringement.
16. We do not think that there is any difficulty in coming to the conclusion that the Tamil Vakya Panchangam is a literary work for the purpose of the Copyright Act. In dealing with the question of the degree of originality necessary to constitute original literary work for the purpose of the Copyright Act, 1911, the Privy Council in the case of Macmillan & Co., Ltd. v. Cooper (1923) 46 M.L.J. 637 : L.R. 57 I.A. 109 : I.L.R. 48 Bom. 308 (P.C.) observed :
...it is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if one may use the expression, upon which the labour and skill and capital of the first have been expended. To secure copyright for this product it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material.
Then again at page 327 quoting the observations of Peterson, J., in University of London Press, Limited v. University Tutorial Press, Limited (1916) 2 Ch. 601 their Lordships approved the following passage in connection with the meaning of the words " original literary work " in Section 1. Sub-section (1) of the Act of 1911:
The word 'original' does not in this connection mean that the work must be the expression of the original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of literary work ' with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work-that it should originate from the author.
Their Lordships go on to state:
What is the precise amount of the knowledge, labour, judgment or literary skill or taste which the author of any book or other compilation must bestow upon its composition in order to acquire copyright in it within the meaning of the Copyright Act, 1911, cannot be defined in precise terms. In every case it must depend largely on the special facts of that case, and must in each case be very much a question of degree.
The appellant on this part of the case has relied strongly on the decision of G.A. Cramp & Sons, Ltd. v. Frank Smythson, Ltd. (1944) A.C. 329. That was a case in which copyright was claimed for an ordinary diary containing a calendar and a certain amount of information regarding postal rates, weights and measures, lighting up times and so on. The Lord Chancellor after quoting the observations of Lord Atkinson in the case just cited came to the conclusion that copyright had not been established for the diary in question which was a mere calendar with the addition of a certain amount of miscellaneous information, all accessible in official publications and a feature of all diaries of the kind.
The learned Lord Chancellor observes:
There would, indeed, as it seems to me, be considerable difficulty in successfully contending that ordinary tables which can be got from, or checked by, the postal guide or the Nautical Almanac are a subject of copyright as being original literary work. One of the essential qualities of such tables is that they should be accurate, so that there is no question of variation in what is stated. The sun does in fact rise, and the moon set, at times which have been calculated, and the utmost that a table can do on such a subject is to state the result accurately. There is so far no room for taste or judgment. There remains, I agree, the element of choice as to what information should be given, and the respondents contend that the test of originality is satisfied by the choice of the tables inserted; but the bundle of information furnished in the respondents' diary is common place information which is ordinarily useful and is, at any rate to a large extent, commonly found prefixed to diaries and, looking through the respondent's collection of tables, I have difficulty in seeing how such tables, in the combination in which they appear in the respondents' 1933 diary, can reasonably claim to be " original work ". There was no evidence that any of these tables was composed specially for the respondents' diary. There was no feature of them which could be pointed out as novel or specially meritorious or ingenious from the point of view of the judgment or skill of the compiler. It was not suggested that there was any element of originality or skill in the order in which the tables were arranged. My own conclusion is that the selection did not constitute an original literary work.
Now, if the Tinnevelly Vakya Panchangam was nothing more than handy extract from published official tables, the reasoning of the Lord Chancellor in the case just cited might well be applicable; but the evidence in this case does show that this panchangam is an original composition worked out by a series of calculations based on a fairly elaborate set of rules in the knowledge of which the first defendant is an admitted specialist. He does not compile his panchangam by copying information from other publications. He has a specialised knowledge of a fairly elaborate system for working out these matters year by year, and it is the result of his own calculations made with reference to the particular locality that enables him to fix not only the dates but the precise hour and minute for the commencement and termination of each particular period, the fixation of which is essential in order to know the proper time for performing a particular ceremony or celebrating a particular festival or for casting the horoscope of a person born on a particular date and hour. We have, therefore, no difficulty in holding that the work in question is an original literary work for the purpose of the Copyright Act, 1911.
17. Having decided that the panchangam in question is a work in which copyright exists and having decided that the agreement, Ex. P-1, binds the first defendant to transfer to the first plaintiff the copyright in the manuscript of that work in each succeeding year as soon as that manuscript is completed, we will next consider whether the plaintiffs as equitable assignees of the copyright of the first defendant's panchangam for the year Dharana can maintain an action for damages for infringement of their copyright by the third defendant on the basis that they have joined in that action the legal owner of the copyright. On this question, the decision of the House of Lords in Performing Right Society, Ltd. v. London Theatre of Varieties, Ltd. (1924) A.C. 1, is the leading authority. The question at issue in that case was not precisely the question just formulated. The plaintiffs in that case were a company which alleged an infringement of their copyright in certain musical works. They had taken assignments from the firms of Chappell & Go. and Keith, Prowse & Co., of the right of performance of every song or musical work then belonging to or which might thereafter be acquired by the said firms. The songs in question were admittedly not in. existence on the date of the contracts. The plaintiffs, when objection was taken to the maintenance of the action in the absence of the legal owners of the copyrights, elected to fight the case on the contention that the presence of the legal owners as parties to the action was unnecessary. It was held by the Court of Appeal that as the plaintiff's interest in the songs was purely equitable and as the defendants were mere infringers claiming no interest thereof, the plaintiffs were not entitled to maintain the action in their own names without joining the owners of the copyright, and this decision was confirmed by the House of Lords. The importance of this decision for the purpose of the present case is that the learned judges of the Court of Appeal and the majority of their Lordships who decided the matter in the House of Lords were of opinion that the action could have been maintained if the plaintiffs as equitable assignees had joined the legal owners of the copyright as parties. In the judgment of the Court of Appeal, Bankes, L.J., says:
I can see nothing in the slatute from which I can draw the inference that an owner of copyright, whether the first owner, or any subsequent owner by legal assignment, ceases to be an owner within the meaning of the statute when he executes an equitable assignment of the whole or part of his right. If this is so it follows either (a) that the equitable assignee is not an owner at all within the meaning of the statute, or (b) that the statute recognises under these circumstances two owners, the legal and the equitable, of the one right. Whichever view is correct, it appears to me that apart from authority the result in this action is the same--namely, that the plaintiffs should not be allowed to maintain the present action without adding the legal owners of the copyright. If the first conclusion is the correct one then the action cannot proceed without them. If the second is correct then the Court in the exercise of its discretion should not allow the action to proceed in the absence of a party who may be interested and who ought to be bound, or whose presence might afford a defence to the defendants. There are difficulties in the way of accepting either conclusion, but the difficulty of accepting the second appears to me to be less than that of accepting the first. If the first is accepted the logical conclusion appears to be that no equitable assignee of copyright can ever maintain a claim for infringement in either a Court of law or equity, because the Act of Parliament only recognises the owner as the person who can claim the assistance of the Courts, and on this assumption the equitable assignee is not the owner, and can never become the owner unless and until it either becomes possible for the owner to. make a legal assignment of the right, or he can be persuaded or compelled by process of law to make such an assignment. I do not think that the language of the statute justifies such a conclusion, and I prefer a construction which includes the equitable owner in the expression 'owner' and then leaves it to the ordinary practice of the Courts to secure all proper parties being before the Court.
Younger, L.J., after pointing out how under the law as it existed before the Judicature Act the owner of the equitable title could compel the legal owner to permit the use of his name at law in an action against an invader of the right or might even have compelled the defendant in equity to admit at law the legal title of the equitable owner, comes to the conclusion that it was not to be expected that an enabling statute like the Copyright Act, 1911, would take away from any class of persons interested in a copyright a right of action enjoyed by them under the statute which it superseded.
18. In the House of Lords, Viscount Cave, L.C., came to the conclusion that the appellants could not claim to be assignees, whether legal or equitable, of the songs then in question by reason of the instrument which was signed when their songs were not in existence; but he observed:
The appellants have a right in equity to have the performing rights assigned to them and in that sense are equitable owners of those rights; but they are not assignees of the rights within the meaning of the statute.
He goes on to observe:
That an equitable owner may commence proceedings alone, and may obtain interim protection in the form of an interlocutory injunction, is not in doubt; but it was always the rule of the Court of Chancery, and is, I think, the rule of the Supreme Court, that in general, when a plaintiff has only an equitable right in the thing demanded, the person having the legal right to demand it must in due course be made a party to the action:
Viscount Finlay observed :
In my opinion, the power of assignment given by the fifth section is not confined to an assignment of the legal property, but will apply to the transfer of any interest, whether legal or equitable....The society became entitled to sue in respect of the interests so acquired, but their right to sue is subject to the general rule that the owner of the legal estate should be joined as a party.
Lord Atkinson takes a somewhat different view. He observes:
When one reads through all the provisions of this statute and realizes how almost every state of things, every event and contingency, is dealt with and provided for, one is, I think, reasonably led to the conclusion that the supplementary provisions contained in Section 31 were designed to deprive every person of copyright to whom it was not secured by the provisions of the Act of 1911, or by those of some other statute for the time being in force. It is, in my view, impossible to suppose that the mode of acquisition of an equitable interest in copyright under a grant or licence made or given before the author's work or the copyright in it is in extistence would have been left unnoticed or unprovided for by this statute as it has been, if it had not been intended to exclude and, impliedly, to prohibit it.
Lord Sumner however observes:
A remedy is conferred by our present law on equitable owners, subject to compliance with certain legal requirements, and the owner of copyright is entitled to all remedies. I can find nothing to show any intention in the Act to ignore equitable rights throughout so wide and important a subject as copyright, nor, in view of the long history of equitable rights and of the enactment in favour of the rules of equity contained in the Judicature Act, 1873, does it seem practicable to hold that the words ' owner' in Section 6, Sub-section 1, and 'title' in Section 6, Sub-section 3, mean exclusively legal owner and legal title as those terms were theretofore understood. So limited a meaning of the words would not be a natural one to place on legal language enacted in 1911.
Later on, he concludes:
I think that the statute leaves equitable assignees to enjoy such position as is given to them by the general law, when they require to vindicate the right, which the Copyright Act, 1911, expressly confers and regulates.
Lord Phillimore takes the stricter view which was taken by Lord Atkinson, and he is of opinion that the grant of a mere equitable right which is not an assignment of the copyright is not sufficient to support an action for breach of copyright against a third party. It will thus be seen that the majority of their Lordships agree with the Court of Appeal in holding that a person who has an equitable right to compel a legal owner to assign a copyright can maintain an action for breach of copyright if he joins the legal owner in that action. In Halsbury's Laws of England, Second Edition, Volume 7, paragraph 871 the position resulting from this decision is summarised as follows:
An agreement to assign a work not yet in existence, and an agreement which contemplates that a further document of assignment is to be executed have been held to take effect as equitable assignments.
An equitable assignee cannot sue in his own name in respect of infringement of the right assigned, but must make the assignor a party to the action.
Copinger on the Law of Copyright, Seventh Edition, page 99 dealing with Sub-section 3 of Section 5 of the Copyright Act, 1911, states:
This section has no application to a document purporting to assign a non-existent work, since such a document cannot be signed by the owner of the right therein, and the author is to be the first owner of the copyright in a work. Consequently, although such a document might be enforced as an equitable assignment, it would not entitle the assignee to sue for infringement without joining the author or legal owner.
19. On this state of the authorities, we are constrained to hold that the first plaintiff having by reason of the agreement, Ex. P-1, become the equitable owner of the copyright in the first defendant's panchangam for the year Dharana, as soon as the work came into existence, is entitled to maintain the suit, he having impleaded not only the second plaintiff who is claiming an interest in the rights but also the first defendant who was the legal owner of the copyright at the relevant dates.
20. There remains the question of the amount of damages. On this question, the appellant relies mainly on a statement made by the first plaintiff in his plaint in the earlier suit in paragraph (9) where he says:
The publication of the Tinnevelly Vakya Panchangam is a profitable business and will yield a net profit of not less than Rs. 300 per annum to the plaintiff.
In the plaint in the copyright suit he has, as already indicated, explained this statement by saying that he was limiting his claim for damages in view of the poverty of the first defendant. He has adduced positive evidence from the printer employed by the third defendant regarding the actual cost of printing the third defendant's panchangam. The rate of commission allowed to the retailers is not in dispute, and the number of copies sold is also established. On the basis of these figures and allowing a substantial margin for contingencies the learned District Judge has estimated the profit of the third defendant from the sale of the panchangam at Rs. 1,000. The third defendant's own evidence on the subject is frankly incredible. He states that the cost of printing 15,300 copies was Rs. 4,000, that is to say, an amount approximately equal to the gross sale price of the edition. He has not produced the accounts which he was directed to maintain in the proceedings for an ad interim injunction; nor has he restricted his sales to the 5,000 copies which he was then authorised to sell. He has produced practically no materials to set against the detailed evidence adduced for the plaintiffs. On this state of the evidence, we see no reason to differ from the conclusion of the learned District Judge. In view of our decision in Second Appeal No. 750 of 1945, the question of allowing the appellant credit for the amount of damages awarded in that suit no longer arises.
21. The result therefore is that Appeal No. 301 of 1945 is dismissed with costs of the plaintiffs. Half the cost of printing the evidence will be apportioned to each of the two appeals.