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15A. Dr. Tulzapurkar would further submit that copyright is a bundle of rights as enumerated in Section 14 of the Copyright Act, and, therefore, there was no need to provide for various rights retained by the author in the agreement; if it was only a licence. According to him, Section 18 of the Act recognises the owner's right to assign copyright either wholly or partially. In his submission, an assignment creates an interest of ownership in favour of the assignee, whereas, a license merely permits a licensee to do something which but for the licence would amount to violation of the owner's rights. In support of his submission he relied upon the decisions in (i) British Actors Film Co. v. Glover, (1918) 1 KB 299 at p. 306 and (ii) Heap v. Harely, (1889) 42 Ch.D. 461 at page 470.

55. Sections 18, 19 and 19A of the Copyright Act, deal with Assignment of copyright. Assignment of copyright may be for the whole of the rights or for the part of the rights only. Assignment of copyright may be general i.e. without any limitation being placed on the assignee or assignment may be subject to certain limitations. Assignment may be for full term of copyright or for a limited period of time. Assignment may be on territorial basis i.e. for a particular territory of the country. Copyright can be assigned on different conditions referred to hereinabove.

64. Clauses 1 and 2 of the agreement any way do not indicate any exclusive right to print and publish in favour of late Shri R.J. Deshmukh. The said agreement does not whisper a single word like exclusive licence or copyright. It merely makes a mention of a licence to print and publish the book of Shri Khandekar.

65. Clause 3 of the agreement is indicative of the fact that within a period of 5 years, if the books by way of first edition are not published, then that right to print and publish shall revert back to the author. In the submission of the plaintiff-appellant this term could not be reconciled with the theory of license. On the contrary, it is indicative of the partial assignment of Copyright. It is no doubt true that some of the reported judgments do suggest that such clause is apt to bring out assignment. However, some of the reported cases have taken contrary view; one of such readily available judgment is in the case of K.P.M. Sunderam v. Rattan Prakashan Mandir, AIR 1983 Del. 461 (paras 15 and 16). In this case it has been ruled that reservation in the agreement amounts to only a publishing agreement and not the assignment partial or whole of any interest in the copyright. Such agreement is to be treated as only a publishing licence. In cases of agreement between authors, publishers and sellers, it is sometimes difficult to determine whether it is an exclusive licence or partial assignment of copyright to publish and sell. This question can be determined only by interpretation of the document relating to the licence or assignment. This is particularly so in case of exclusive licence between authors and publishers. Though in case at hand there is no such difficulty, since there is no exclusive grant in favour of the publisher, however, while determining the nature of transaction, isolated clause cannot be taken into consideration. The document as a whole is required to be read to spell out the correct nature of the transaction between the parties.

66. As already pointed hereinabove Clause 1 of the agreement does not provide for exclusive right in favour of Shri R.J. Deshmukh to print and publish. Absence of words such as, "their successor and assigns etc." are also indications contrary to the concept of partial assignment. In absence of grant of "sole and exclusive license" is also an additional factor to suggest that the agreement in question is merely a publishing agreement and could not be regarded as an assignment of copyright.

67. Two propositions in respect of commercial contracts are well recognised. Firstly, that there is no presumption in favour of permanence of an agreement. Secondly, if a contract involved mutual trust and confidence in its fulfilment, normally, Courts would not interpret its term to employ permanence. In this case mutual reciprocal obligations are flowing from the terms of the agreement such as payment of royalty, giving of accounts, supply of copies to the author with restriction on the right of the publisher to distribute complimentary copies. If the consideration consists of payment of royalties or a share of profits instead of downright payment, then the copyright is not assigned. It would be a licence to publish and sell. In this case, payment of royalty instead of a sum of money paid down will also weigh heavily against partial assignment. In Copinger and Skone James on Copyright (9th Edition at page 384, it is observed :