Court: High Court of Delhi at New Delhi Decided on: 19 August 1988 Presiding Judge: Justice B.N. Kirpal Citations: AIR 1989 Delhi 63; 36 (1988) DLT 31; 1988 (15) DRJ 223; 2005 (30) PTC 253 (Del.)
Background
The dispute in this case arose from the posthumous publication of the autobiography India Wins Freedom, attributed to Maulana Abul Kalam Azad, one of independent India’s most eminent statesmen and scholars. The book had a complex history of composition. According to the preface written by Professor Humayun Kabir on 15 March 1958, Maulana Azad agreed, on Prof. Kabir’s persuasion, to write his autobiography on the understanding that Prof. Kabir would relieve him of the actual burden of writing. Over approximately two years, Maulana Azad described his experiences to Prof. Kabir, who made detailed notes, prepared draft chapters in English and handed these over to Maulana Azad for review. Maulana Azad then read each chapter carefully and both of them went over it together, with Maulana Azad making numerous amendments, additions, alterations and omissions. The first complete draft was ready by September 1957. Maulana Azad then decided that thirty pages of the manuscript, dealing with incidents and reflections of a personal character, should not be published at that time. He directed that one copy each of the complete text — including the thirty unpublished pages — be deposited in sealed covers with the National Archives, New Delhi and the National Library, Calcutta, with instructions that the seals be broken only on or after 22 February 1988, thirty years after his death. A revised draft, excluding the thirty pages, was presented to Maulana Azad in November 1957. Prof. Kabir recorded in the preface that Maulana Azad then went through the manuscript chapter by chapter and sentence by sentence, making minor alterations and that Prof. Kabir’s function was only to record Maulana Azad’s findings, making it improper to allow his own views to colour the narrative.
Maulana Azad died on 22 February 1958 before the book could be published. At the time of his death, his two nearest surviving relatives were Fatima Begum, his sister and Nooruddin Ahmed, his nephew. On 20 May 1958 and 29 May 1958 respectively, Nooruddin Ahmed and Fatima Begum signed identical documents expressing their consent to the arrangement that had been arrived at for the publication of the book, excluding the sealed thirty pages.
On 2 September 1958, Prof. Humayun Kabir entered into a written agreement with Orient Longman Limited for the publication of the abridged version of the book — that is, the version excluding the thirty sealed pages. In this agreement, Prof. Kabir was described as the “composer” of the book, the narrative being that Maulana Azad had dictated notes to Prof. Kabir who had composed the book from that material, which Maulana Azad then approved. The agreement provided that Orient Longman would publish the work at their own expense and risk and would pay half the royalty to the Indian Council of Cultural Relations and the other half to Fatima Begum and Nooruddin Ahmed in equal shares. The agreement also recorded that Orient Longman would have the first option to publish the complete book — including the sealed thirty pages — when the seals were broken on 22 February 1988. Fatima Begum continued to receive her share of royalties until her death in April 1966, after which her son Hamid Ali obtained a succession certificate and received the royalties until his death in December 1981.
Separately, in 1959, the two legal heirs arrived at a settlement on the division of Maulana Azad’s estate. The copyright in his books was referred for decision to Hafiz Mohd. Ibrahim, who held on 18 March 1959 that Maulana Azad had, during his lifetime, made an oral gift of all copyrights in his published and unpublished works exclusively to Nooruddin Ahmed.
As the date of 22 February 1988 approached, Orient Longman wrote to Nooruddin Ahmed confirming their intention to exercise the first option and publish the complete manuscript. The plaintiff, Najma Heptulla, claiming to be one of the legal heirs of Maulana Azad through Fatima Begum, issued a notice dated 13 February 1988 to the National Library and National Archives directing that the seals not be broken. She then filed the present suit for rendition of accounts and injunction, seeking to restrain Orient Longman and other defendants from breaking the seals of the covers of the complete book and from making its contents known to the public.
Issues for Determination
Three principal legal questions arose for the Court’s consideration at this interlocutory stage. The first was the question of authorship: who is the author of India Wins Freedom — Maulana Abul Kalam Azad alone, Prof. Humayun Kabir alone or both of them as joint authors? The second was whether Prof. Humayun Kabir had the authority to execute the agreement dated 2 September 1958 with Orient Longman — specifically, whether the legal representatives of Maulana Azad had authorised him to do so and if not, whether their subsequent conduct amounted to ratification or gave rise to an estoppel. The third, which flowed from the first two, was whether the plaintiff was entitled to an interim injunction restraining the breaking of the seals and the publication of the complete book, having regard to the balance of convenience and the principle against interfering with the expressed intention of the deceased author.
Key Holding of the Court
The Court vacated the ad interim injunction and declined to grant an interim injunction in favour of the plaintiff. It held, at the interlocutory stage, that Maulana Azad and Prof. Humayun Kabir were to be regarded as joint authors of India Wins Freedom and that Prof. Kabir was not the sole author. The Court further held that the legal representatives of Maulana Azad, having accepted royalties under the agreement of 2 September 1958 for approximately thirty years without demur, were estopped from challenging the validity of that agreement or from restraining the publication of the complete book in accordance with the arrangement that Maulana Azad himself had intended. Defendant No. 1, Orient Longman, was directed to furnish security of Rs. 1 lakh to the satisfaction of the Registrar of the Court prior to publishing the complete book, in order to secure the plaintiff’s right to rendition of accounts if her suit were ultimately decreed. No costs were awarded.
Statutory Provisions Involved
The Court referred to the following provisions of the Copyright Act, 1957. Section 2(d), which defines “author” in relation to a literary or dramatic work as “the author of the work” — a definition the Court noted was of limited assistance in resolving the dispute. Section 55(2), which provides that where a name purporting to be that of an author appears on a published literary work, that person shall be presumed, unless the contrary is proved, to be the author — a provision directly relevant to the published version of the book which carried Maulana Azad’s name. Section 13(2), which recognises the concept of joint authorship under Indian copyright law. Section 17, proviso (cc), which provides that the person who delivers a speech in public is regarded as the first owner of the copyright thereof — referred to by the Court in the context of distinguishing the English case of Walter v. Lane. Section 18, which enables the owner of copyright to assign it in favour of another person. Section 19, which requires that an assignment of copyright be in writing signed by the assignor or his duly authorised agent. The Court also engaged with Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (governing grant of injunction) and Order 39 Rule 4 (governing vacation of injunction).
Reasoning of the Court
On Authorship
The Court commenced its analysis by examining the statutory presumption under Section 55(2) of the Copyright Act, 1957. Since the published book bore Maulana Azad’s name as author, the presumption operated in his favour. However, the defendants sought to rebut this by relying on the preface written by Prof. Kabir and on the terms of the agreement dated 2 September 1958.
The Court then examined the two English decisions relied upon by counsel for defendant No. 6 in support of the contention that Prof. Kabir was the sole author. In Donoghue v. Allied Newspapers Ltd., (1937) 3 All ER 503, Justice Farwell had held that where a jockey communicated his experiences to a journalist who wrote the articles in his own language, the copyright vested in the journalist as the person in whose language the work was expressed, since the material contributed by the jockey — however central — did not vest in him the authorship of the written form. In Walter v. Lane, (1900) AC 539, the House of Lords held that a reporter who took down speeches in shorthand, revised, corrected and punctuated the reports for publication was the author of those reports, since it was the reporter who brought the written form into existence through his own skill and labour.
The Court distinguished Walter v. Lane on the basis that the question of authorship in that case did not arise between the speaker and the reporter, but between the reporter and a third party who sought to reproduce the report; the speaker had no connection whatsoever with the preparation of the report and there was no collaboration between them. In the present case, by contrast, there was close intellectual collaboration between Maulana Azad and Prof. Kabir throughout the process of composition.
The Court also declined to accept Donoghue as correctly representing the law on the question of joint authorship, for the reason that the concept of joint authorship was not considered in that case. The Court relied instead on the English decision in Levy v. Rutley, (1871) 6 LR CP 523, from which it extracted the principle that to constitute joint authorship, there must be a common design and a joint labouring in furtherance of that common design; it is not necessary that each contributor contribute the same amount of labour, but there must be cooperation in the design and execution of the work.
The Court then reasoned that if the principle in Donoghue were taken to its logical conclusion — that authorship vests exclusively in the person in whose language the work is expressed — it would produce results difficult to accept in law. As an illustration, the Court observed that if a scientist who lacks the literary capacity to express his discoveries employs another person to transcribe his thoughts into a book, the person in whose language the work is written cannot be regarded as the sole author to the complete exclusion of the scientist who provided all the intellectual content. The Court held that a literary work consists of both the subject matter and the language in which it is expressed and that both elements are important. Where two persons, pursuant to a pre-concerted joint design, make intellectual contributions to a literary work — one by providing the material, ideas and content and the other by expressing them in a particular language — both are to be regarded as joint authors.
Applying this principle to the facts, the Court found from Prof. Kabir’s own preface that the collaboration between Maulana Azad and Prof. Kabir was active, close and intellectual throughout. Maulana Azad supplied all the material and ideas from his own experience. He reviewed every chapter with Prof. Kabir, made amendments, additions, omissions and alterations, decided which pages were to be withheld from publication and it was his views — not Prof. Kabir’s — that constituted the substance of the narrative. Prof. Kabir himself had stated that his function was only to record Maulana Azad’s findings and that it would have been improper to allow his own views to colour the narrative. The Court further noted that Prof. Kabir’s conduct of arranging for fifty percent of the royalties to be paid to the legal representatives of Maulana Azad was inconsistent with any claim to sole authorship. On these facts, the Court held that Maulana Azad and Prof. Kabir must be regarded as joint authors of the book, Prof. Kabir being more than a mere scribe.
On Authority to Execute the Agreement and Estoppel
The Court held that with the death of Maulana Azad, any agency that Prof. Kabir may have had on his behalf stood automatically terminated. Whatever rights remained thereafter vested in the legal representatives of Maulana Azad. It was therefore necessary for Prof. Kabir to have been authorised by those legal representatives to enter into the agreement with Orient Longman. The Court found that the document signed by Fatima Begum on 29 May 1958 amounted to ratification of the arrangement between Prof. Kabir and Orient Longman as it stood at that date — which covered the publication of the abridged version and the arrangement for the deposition of the sealed thirty pages. The document did not, however, constitute an express ratification of every term of the agreement dated 2 September 1958, since no draft of that agreement had been shown to her.
The Court nevertheless held that the legal representatives of Maulana Azad, including the plaintiff’s grandmother Fatima Begum, were estopped from challenging the validity of the agreement dated 2 September 1958. The reasoning was that Fatima Begum and her successors had accepted royalties under that agreement for approximately thirty years. The agreement was the only basis on which Orient Longman was liable to pay the royalty. By accepting those benefits without any demur, the legal representatives must be taken to have been aware of the terms of the agreement, including the first option for publication of the complete book. Their conduct of receiving royalties over three decades without challenge had led Orient Longman to justifiably believe that the agreement had the consent of Maulana Azad’s legal representatives. The Court also noted that the preface, published in the book since 1958, made clear that thirty pages were lying sealed and were to be published after thirty years — a fact that was broadcast to the world and about which the legal representatives could not have been ignorant.
On the Grant of Interim Injunction
The Court declined to grant the interim injunction on two additional grounds. First, the balance of convenience lay against the plaintiff. The publication of the complete book represented the express intention and direction of Maulana Azad himself. Where the deceased author had himself intended publication, a legal representative who holds copyright merely as an incident of succession — and who is not the author — has no legitimate interest beyond securing adequate royalty from the publication. That interest could be sufficiently protected by directing Orient Longman to maintain accounts and furnish security. Second, no irreparable injury would be caused to the plaintiff if the injunction was refused, since the plaintiff’s financial interest could be adequately compensated through a decree for rendition of accounts if the suit succeeded on its merits.
Doctrinal Significance
This judgment is of considerable importance in Indian copyright law, primarily for the principles it lays down on the questions of joint authorship, the relationship between material contribution and linguistic expression in determining authorship and the operation of estoppel against legal heirs of a deceased author.
The most significant doctrinal contribution of the judgment is its formulation of the test for joint authorship. The Court drew upon and developed the principle from Levy v. Rutley to hold that where two persons, pursuant to a pre-concerted joint design, make intellectual contributions to a literary work, they are to be regarded as joint authors, irrespective of whether their individual contributions are equal in quantity. Critically, the Court rejected the proposition — derived from Donoghue v. Allied Newspapers — that authorship vests exclusively in the person in whose language the work is written. In doing so, the Court recognised that intellectual contribution to the substance, content and ideas of a literary work is as legally significant as the contribution of linguistic form. This is a doctrinally sound and practically important clarification, given that collaborative writing arrangements — particularly in the context of autobiographies, memoirs and specialised texts — are common and questions of authorship in such arrangements are frequently contested.
The Court’s formulation that a literary work consists of both subject matter and the language in which it is expressed and that intellectual contribution to either element pursuant to a common design may found joint authorship, has been influential in subsequent Indian copyright jurisprudence. It prevents the reduction of copyright authorship to a purely mechanical inquiry about who physically wrote the words and gives appropriate legal recognition to the intellectual contribution of the person whose ideas, experiences and directions form the substance of the work.
The judgment also makes an important contribution on the question of estoppel in the context of copyright succession. The Court held that legal heirs who accept the economic benefits of a publishing agreement over an extended period, without challenging its terms, cannot subsequently invoke their copyright ownership to restrain publication in accordance with that agreement. This principle has particular relevance where the deceased author himself intended publication and where the heir’s connection to the work is purely by operation of succession rather than by any creative contribution. The Court’s observation that the interest of a copyright holder who is not the author is, in such circumstances, confined to securing adequate remuneration — and that this interest can be protected without restraining publication — reflects a purposive approach to copyright law that balances private proprietary rights against the broader interest in the dissemination of creative works in accordance with the author’s own expressed wishes.
Finally, the judgment touches, though briefly, on a question of lasting theoretical interest: whether the statutory provision under Section 17, proviso (cc) of the Copyright Act, 1957 — vesting copyright in the person who delivers a speech — would affect the analysis in a case such as Walter v. Lane under Indian law. The Court declined to resolve this question as it did not squarely arise on the facts, but the observation indicates a judicial awareness that the Indian statutory framework may not always map directly onto English precedents developed in a different legislative context.