Kerala High Court
Fr. K.O. Thomas vs Stateof Kerala on 3 February, 2010
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.M.BABU
MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938
Crl.MC.No. 4827 of 2013
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CRIME NO. 1954/2008 OF ERNAKULAM CENTRAL POLICE STATION , ERNAKULAM
C.C.30/2010 OF THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM
PETITIONER(S)/ACCUSED:
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FR. K.O. THOMAS, AGED 43 YEARS
S/O.LATE O.V.OOMMEN,OLEPORRATHU SORON VILLA,FORMERLY ST.MARY'S
ORTHODOX CHURCH,KALLUNGAL,
THIRUVALLA,PATHANAMTHITTA.
BY ADV. SRI.P.HARIDAS
RESPONDENT(S)/STATE AND COMPLAINANT:
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1. STATEOF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM-682031.
2. SUB INSPECTOR OF POLICE,
CENTRAL POLICE STATION,ERNAKULAM,PIN-682031.
3. P.V.SAMUEL KOODEL,
SAMDALE,KALANJOOR.P.O,PATHANAMTHITTA-689645.
R3 BY ADV. SRI.K.V.SABU
BY PUBLIC PROSECUTOR K.K. SHEEBA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 7.12.2016, THE
COURT ON 23-01-2017 PASSED THE FOLLOWING:
Crl.MC.No. 4827 of 2013 ()
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APPENDIX
ANNEXURES
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ANNEXURE-1 TRUE COPY OF THE PRIVATE COMPLAINT CMP 658/2010
DTD.22/1/2010.
ANNEXURE-2 TRUE COPY OF THE SWORN STATEMENT OF 3RD RESPONDENT
DATED 3.2.2010.
ANNEXURE-3 TRUE COPY OF THE SWORN STATEMENT OF CW2 IN ANNEXURE-
1.DATED 3.2.2010.
//True copy//
P.S to Judge
"CR"
A.M.BABU, J.
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Crl.M.C.4827 of 2013
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Dated : 23rd January, 2017
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ORDER
1.'Ratri Sooryan'. This is the title of a Christian devotional song. Infringement of its copyright is the issue in a private criminal prosecution. The same is sought to be quashed under section 482 of the Cr.P.C. The ground urged at the time of hearing was that the copyright in the song was not registered.
2.Is registration of copyright mandatory to sustain a prosecution under section 63 of the Copyright Act ? This is the question to be answered to decide the Crl.M.C.
3.C.C.30/2010 is a complaint case. It is pending in the Court of the Chief Judicial Magistrate, Ernakulam. The 3rd respondent in the Crl.M.C is the complainant. The petitioner is the accused. Parties are referred to in this order as shown in the memorandum of Crl.M.C. Crl.M.C.4827/13 2
4.Annex-1 is a copy of the complaint. The material allegations in it are the following : The 3rd respondent is a lyricist. He in 1991 wrote the song 'ratri sooryan'. The song was set to tune by one Sri.John P.John. The song was given to an orchestra called 'Sruti' for including in the carol service of the Malankara Orthodox Christian Church. But the 3rd respondent continues to be the owner of the work. He happened to see a musical album telecast by the Jeevan TV. The album was directed by the petitioner. One of the songs included in the album was the aforesaid song of the 3rd respondent. The petitioner claimed himself to be the lyricist of the said song too. The 3rd respondent on comparison confirmed that the song telecast was exactly the song written by him. He requested the petitioner to remove the song from the album. The petitioner agreed to it, but did not do it. He committed an offence under section 63 of the Copyright Act and also an offence under section 420 of the IPC. Crl.M.C.4827/13 3
5.Heard the learned counsel for the petitioner, the learned counsel for the 3rd respondent and the learned Public Prosecutor.
6.The petitioner is a priest of the Malankara Orthodox Christian Church. He is the accused in C.C.30/2010. Cognizance was taken by the Chief Judicial Magistrate on a protest complaint. The 3rd respondent claims himself to have written the song 'ratri sooryan'. His grievance is that his copyright in the song was infringed by the petitioner. The learned counsel for the petitioner submits that the petitioner cannot be prosecuted under section 63 of the Copyright Act. For, according to the learned counsel, the copyright in the song is not registered in the name of the 3rd respondent. In support of his contention the learned counsel relied on a decision of the Madhya Pradesh High Court. I shall consider the said decision later. Crl.M.C.4827/13 4
7.The 3rd respondent who claims to be the proprietor of the copyright has no case that the copyright in the song has been registered in his name. Therefore, if registration is a condition precedent for a criminal prosecution under the Copyright Act, C.C.30/2010 may have to be quashed under section 482 of the Cr.P.C.
8.A few provisions of the Copyright Act are to be considered. Infringement of copyright is a punishable offence under section 63. Section 51 states when a copyright is infringed. Section 14 gives the meaning of the term 'copyright'. Chapter X deals with registration of copyright. The provisions in Chapter X which are relevant for the present purpose are sections 44, 45 and
48. I shall consider these provisions.
9.Any person who knowingly infringes or abets the infringement of the copyright in a work is liable for punishment under section 63. There is nothing in section 63 to suggest that Crl.M.C.4827/13 5 registration of copyright is mandatory to prosecute the infringer thereunder. Section 63 does not at all insist on registration of copyright a condition precedent for prosecution.
10.Meaning of the term 'copyright' for the purposes of the Copyright Act is given in section 14. It means the exclusive right to do or authorize the doing of any of the acts enumerated in clauses (a) to (e) of section 14 in respect of a work or any substantial part thereof. Section 14 also does not indicate that 'copyright' means a registered copyright only.
11.Section 51 states when shall the copyright in a work be deemed to be infringed. It shall be deemed to be infringed when a person, without a licence granted by the owner of the copyright or the registrar of copyrights, does anything which is the exclusive right conferred upon the owner of the copyright by the Copyright Act. Section 51 does not say that the copyright in a work Crl.M.C.4827/13 6 shall be deemed to be infringed only if it is registered.
12.Section 44 directs that a register called the register of copyrights shall be kept at the copyright office. In such register may be entered the names or titles of works and the names and addresses of authors, publishers and owners of copyrights and such other particulars as may be prescribed. Sub-section (1) of section 45 provides that the author or publisher of, or the owner of or other person interested in the copyright in, any work may make an application to the registrar of copyrights for entering particulars of the work in the register of copyrights. Sub-section (2) provides that on receipt of an application in respect of any work the registrar may, after holding such inquiry as he may deem fit, enter the particulars of the work in the register.
13.Sections 44 and 45 are the provisions relating Crl.M.C.4827/13 7 to the registration of copyrights. Those provisions suggest that registration of copyright is not mandatory, but only optional. No provision in the Copyright Act makes registration of copyright compulsory. The consequence of non-registration is not stated in Chapter X or elsewhere in the Copyright Act. No provision of the said Act can be interpreted to mean that the infringer of a copyright can be prosecuted under section 63 only if the copyright is registered.
14.Section 48 provides that the register of copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts therefrom certified by the registrar of copyrights and sealed with the seal of the copyright office shall be admissible in evidence in all courts without further proof or production of the original. Thus, registration is prima facie evidence of the copyright in a Crl.M.C.4827/13 8 work. This perhaps is the only advantage of registration.
15.As said already, registration is not mandatory. It is only optional. The registration may give the proprietor of the copyright some benefit. He becomes the proprietor of the copyright not because of the registration. Only a person having the copyright in a work is entitled to get it registered in his name. The registrar of copyrights should be satisfied in the inquiry held by him that the person applying for registration has the copyright in the particular work. It is not the registration which confers title to the copyright in a work. Therefore the petitioner cannot be heard to say that he cannot be prosecuted as the copyright is not registered in the name of the 3rd respondent. Thus, looking at it from any angle, registration of copyright is not necessary to initiate and proceed with a prosecution under section 63. No provision in the Copyright Act is in aid of the contention of Crl.M.C.4827/13 9 the petitioner that he cannot be prosecuted without registration of the copyright.
16.The learned counsel for the petitioner relied on the decision of the Madhya Pradesh High Court in B.K.Dani v. State of M.P (2005 Cri.L.J 876 = 2005 KHC 2491). A criminal prosecution under section 63 of the Copyright Act was quashed by a learned Single Judge of the Madhya Pradesh High Court. It was held that a prosecution would not lie if the copyright was not registered under section 45. It was also held that the copyright in a book was secured only if it was duly registered. In order to hold so the learned Single Judge relied on the decision of a Division Bench of the same High Court in Mishra Bandhu Karyalaya v. Shivratanlal Kosha (AIR 1970 Madhya Pradesh 261).
17.The Division Bench in Mishra Bandhu's case (supra) has said at paragraph 9 of the judgment that the Indian Copyright Act, 1914 had nowhere Crl.M.C.4827/13 10 made any provision for the registration of copyrights. The Division Bench has observed that under the Copyright Act, 1957 registration of the book with the registrar of copyrights is a condition for acquiring copyright with respect to it. It is also observed that the copyright in a book is secured only if it is registered according to the provisions of the Copyright Act, 1957. The Division Bench was considering an appeal from a decree. Registration of copyright was not an issue in that suit. The provisions relevant for deciding the suit and appeal were those in the Indian Copyright Act, 1914 and not the Copyright Act, 1957. Therefore the observations of the Division Bench on registration of copyright were only obiter dicta. The Division Bench itself made it clear by stating that the whole object of the discussion in paragraph 9 of the judgment was to remove a misconception.
18.The Full Bench of the Madhya Pradesh High Court Crl.M.C.4827/13 11 in K.C.Bokadia v. Dinesh Chandra Dubey (MANU/MP/0269/1995) considered the correctness of the aforesaid observations of the Division Bench. The findings of the Full Bench may be summarised as follows, namely, (i) the observations of the Division Bench are clearly obiter dicta, (ii) the Division Bench did not lay down the correct law on the point, (iii) only an existing copyright could be registered under section 45 of the Copyright Act, (iv) registration follows the copyright and not vice versa and (v) there is no specific provision in the Copyright Act as in the Trade and Merchandise Marks Act or the Indian Partnership Act barring institution of legal proceedings in the absence of registration. It was ultimately held that registration was not mandatory and therefore civil or criminal remedy could be resorted to without registration of the copyright.
19.In B.K.Dani's case (supra) the learned Single Crl.M.C.4827/13 12 Judge happened to rely on the decision of the Division Bench in Mishra Bandhu's case (supra) as the decision of the Full Bench in K.C.Bokadia's case (supra) was not brought to the notice of his Lordship. B.K.Dani's case (supra) will not help the petitioner as the dictum in that decision is not good law.
20.Two Division Benches of this High Court considered the same question, of course on the civil side. The decisions are (i) Kumari Kanaka v. Sundararajan (1972 KLR 536) and (ii) Madhavan v. S.K.Nayar (1987 (2) KLT 47 = 1987 KHC 369). Both the decisions hold that registration of the work under the Copyright Act is not compulsory and is not a condition precedent for maintaining a suit for damages complaining infringement of copyright. Both the decisions hold that Mishra Bandhu's case (supra) does not hold good law. One decision of the Madras High Court on the same point is M/s Manojah Cine Productions v. A.Sundaresan (AIR 1976 Madras 22). Crl.M.C.4827/13 13
21.The learned counsel for the petitioner submits that there is no whisper in the complaint that the 3rd respondent has copyright. The argument cannot be accepted. Annex-1 complaint states that the complainant (3rd respondent) wrote the song 'ratri sooryan' in 1991. He has asserted that he is the owner of the work. It is averred that he on comparison confirmed that the song telecast was exactly the song written by him. It is an altogether different question whether these allegations in the complaint are true or false. That is a matter for evidence. Whether the 3rd respondent is really the lyricist of the song is also a matter for evidence. The correctness or otherwise of the allegations in the complaint cannot be decided in a proceedings under section 482 of the Cr.P.C.
22.Another submission of the learned counsel for the petitioner was that the 3rd respondent did not produce any document to show that the song Crl.M.C.4827/13 14 was written by him. The petitioner has stated in the memorandum that there is no allegation to attract the offence under section 420 of the IPC. The submission and the contention noted above are not grounds to quash the proceedings in C.C.30/2010. The learned Chief Judicial Magistrate examined the 3rd respondent and a witness upon oath under section 200 of the Cr.P.C and was satisfied that process should be issued to the petitioner. The submission and the contention noted above are matters for the petitioner to agitate before the learned Chief Judicial Magistrate at the appropriate stage of the said proceedings.
23.The learned counsel for the petitioner relied on a decision of the High Court of Karnataka. The decision is Zac Poonen v. Hidden Treasure Literatue Incorporated in Canada (2002 KHC 2045). That was a case where a criminal prosecution was quashed on several grounds including that there was no copyright in favour Crl.M.C.4827/13 15 of the complainant and that there was no infringement of any copyright. The case on hand is entirely different.
24.I shall conclude. The proprietor of an unregistered copyright can institute and prosecute a criminal prosecution under section 63 of the Copyright Act if it is infringed. The Crl.M.C is devoid of merit. It deserves dismissal. Dismissed.
Sd/-
A.M.BABU Judge Mrcs/12.1.17 //True copy// P.S to Judge