Nav Sahitya Prakash & Ors. v. Anand Kumar & Ors.

High Court of Allahabad | Decided: 16 July 1980 First Appeals No. 8 of 1975 & No. 9 of 1975 Bench: Division Bench of the High Court of Allahabad Citation: AIR 1981 All 200 | 1980 SCC OnLine All 444

Background

Late Sri Ram Naresh Tripathi was an eminent Hindi scholar, poet and litterateur of considerable standing in the literary community of northern India. He authored a number of works in Hindi, carrying on his literary and publishing activities through a commercial enterprise operating under the name and style of Hindi Mandir Prayag, based at Allahabad. Among the several literary works produced by Ram Naresh Tripathi, one of the most celebrated was a composition titled SAPNA, a Khandkavya – a medium-length narrative poem in the classical Hindi literary tradition – which had acquired significant recognition and popularity in the Hindi literary world. The work had been prescribed by Delhi University as a textbook for the Bachelor of Arts degree, a fact that both established its literary standing and enhanced its commercial value as an educational publication. Ram Naresh Tripathi died in January 1962, leaving behind his widow Smt. Udaiwanti Devi and three sons – Anand Kumar, Jayant Kumar and Basant Kumar – as his legal heirs.

Following the death of Ram Naresh Tripathi, the family business of Hindi Mandir Prayag was shifted to Sultanpur and the copyright in his literary works, including SAPNA, devolved upon his heirs as co-owners in accordance with the law of succession. The management and exploitation of these copyrighted works became a matter of dispute among the surviving sons. The critical point of conflict arose when Basant Kumar, one of the three sons and a co-owner of the copyright in the works, purported to independently grant a licence to two defendants – the printers and publishers of SAPNA – authorizing them to print and publish the work and to commercialize the same without the consent or knowledge of his brothers Anand Kumar and Jayant Kumar, the other co-owners of the copyright.

Anand Kumar and Jayant Kumar filed two separate suits – Suit No. 17 of 1965 and Suit No. 8 of 1966 – before the trial court at Allahabad. In Suit No. 17 of 1965, they arrayed the printers and publishers as defendants 1 and 2 and their brother Basant Kumar as defendant 3, seeking relief for infringement of their copyright in SAPNA and other works. In Suit No. 8 of 1966, they sought corresponding reliefs in respect of the other literary works authored by their late father. The plaintiffs contended that as co-owners of the copyright in the works, they were entitled to protect those works against unauthorized reproduction and distribution and that Basant Kumar had no authority to unilaterally grant a licence to the printers and publishers without obtaining their consent. The unauthorized printing and sale of SAPNA was alleged to constitute an infringement of their copyright and they sought a permanent injunction and accounts of profits.

The defendants raised two fundamental objections to the maintainability of the suits. First, they contended that since Ram Naresh Tripathi had not registered his copyright in SAPNA or in any of the other works during his lifetime and since the plaintiffs had also not registered the copyright after inheriting it, no enforceable copyright right existed in law. The defendants relied upon Section 44 of the Copyright Act, 1957 and the decision of the Madhya Pradesh High Court in Mishra Bandhu Karyalaya v. S. Koshel (AIR 1970 Madh Pra 261), which had taken the position that registration was a condition precedent for the acquisition and enforcement of copyright under the Act. Second, the defendants contended that a co-owner of copyright could not maintain a suit for infringement against another co-owner or against a licensee purportedly authorised by that co-owner, since a co-owner was entitled to exploit the jointly owned work independently.

The trial court rejected both objections, finding that registration was not a mandatory condition for the enforcement of copyright and that a co-owner could not unilaterally grant a licence to third parties without the consent of the other co-owners. The trial court decreed both suits, granted a permanent injunction restraining Basant Kumar from using or licensing the right to print and publish SAPNA and other works and directed the defendants to render accounts of the books sold. Aggrieved by these decrees, the defendants filed First Appeal No. 8 of 1975 and First Appeal No. 9 of 1975 before the Division Bench of the Allahabad High Court, which heard and decided both appeals together.

Issues for Determination

1. Whether registration of copyright under the Copyright Act, 1957, was a mandatory condition precedent for the acquisition of copyright and for the maintainability of a suit for the enforcement or infringement of copyright, such that the failure of Ram Naresh Tripathi or his heirs to register the copyright in SAPNA and the other works disentitled the plaintiffs from seeking legal relief.
2. Whether the language of Section 44 of the Copyright Act, 1957, which establishes the Register of Copyrights and provides for the entry of names, titles and particulars of works therein, imposed a mandatory obligation on authors and copyright owners to register their works as a condition of acquiring or enforcing copyright protection under the Act.
3. Whether the use of the word “may” in Section 45 of the Copyright Act, 1957, which provides that authors and copyright owners “may” apply for registration of their works, was permissive and discretionary in character or whether it was to be read as mandatory having regard to the overall scheme of the Act.
4. Whether the decision of the Madhya Pradesh High Court in Mishra Bandhu Karyalaya v. S. Koshel (AIR 1970 Madh Pra 261), holding registration to be a mandatory condition for the enforcement of copyright under the Act, correctly stated the law and whether it was to be followed by the Allahabad High Court in the present proceedings.
5. Whether a co-owner of copyright in a jointly owned literary work could unilaterally and without the consent of the other co-owners, grant a licence to a third party authorizing the reproduction and publication of the work or whether such a licence required the consent of all co-owners.
6. Whether a co-owner of copyright could independently maintain a suit for infringement of the jointly owned copyright against a third party, without joining the other co-owners as parties to the proceedings and whether the absence of the other co-owners as plaintiffs constituted a bar to the maintainability of the suit.
7. Whether the grant of an injunction and a direction to render accounts of profits were appropriate reliefs in the circumstances, having regard to the conduct of Basant Kumar in unilaterally licensing the work and the commercial exploitation of the plaintiffs’ copyright by the printers and publishers without authorization.

Key Holdings of the Court

First, the Division Bench held that registration of copyright under the Copyright Act, 1957, was not a mandatory condition for the acquisition or enforcement of copyright. The court held that copyright in an original literary work arose automatically upon the creation of the work under the scheme of the Copyright Act, 1957 and that registration was merely an optional and evidentiary step that a copyright owner might choose to take but was under no legal compulsion to undertake. The court rejected the view of the Madhya Pradesh High Court in Mishra Bandhu Karyalaya v. S. Koshel as an incorrect statement of the law.

Second, the court held that the language of Section 44 of the Copyright Act, 1957, which established the Register of Copyrights, was not intended to make registration a mandatory prerequisite for the enforcement of copyright. The purpose of the provision was to create a public register in which copyright particulars could be entered for evidentiary and administrative purposes and not to make registration a condition of the existence or enforceability of copyright.

Third, the court held that the word “may” in Section 45 of the Copyright Act, 1957 – which provided that authors and copyright owners “may” apply for registration of their works – was permissive and not mandatory. The court applied the settled rule of statutory interpretation that the natural and ordinary meaning of “may” is permissive in character and that it should not be read as mandatory unless the context of the legislation clearly required such a reading. The court found that nothing in the scheme of the Copyright Act, 1957, required the word “may” in Section 45 to be read as “shall” or as imposing a mandatory obligation.

Fourth, the court held that a co-owner of copyright in a literary work could not, without the consent of the other co-owners, unilaterally grant a licence to a third party authorizing the reproduction, publication or commercial exploitation of the jointly owned work. Relying upon the principle enunciated in Halsbury’s Laws of England (3rd Edition, Vol. III, para 738), the court stated that one joint author could not reproduce the work himself or grant a licence to others to reproduce it without the consent of the other author or authors.

Fifth, the court held that while a co-owner could not unilaterally grant a licence, a co-owner was entitled to independently institute proceedings for the infringement of the jointly owned copyright against a third party without being required to join the other co-owners as co-plaintiffs. The court held that one joint author could by himself take infringement proceedings against a third party, drawing a distinction between the inability to exploit the work independently and the right to enforce it against infringers.

Sixth, the Division Bench upheld the decrees of the trial court in both suits, confirming the permanent injunction restraining Basant Kumar from using or licensing the right to print and publish SAPNA and the other works without the consent of all co-owners and affirming the direction to render accounts. Both appeals were dismissed.

Statutory Provisions Involved

Section 13 of the Copyright Act, 1957 specifies the classes of works in which copyright subsists, including original literary, dramatic, musical and artistic works, cinematograph films and sound recordings. The court’s analysis proceeded from the foundational premise that SAPNA, as an original literary work within the meaning of this provision, attracted copyright protection under the Act upon its creation, independently of any act of registration. This provision was central to the court’s rejection of the argument that the absence of registration deprived the plaintiffs of any enforceable copyright.

Section 17 of the Copyright Act, 1957 provides that the author of a work shall be the first owner of the copyright therein, subject to certain exceptions. In the context of the present case, Ram Naresh Tripathi, as the author of SAPNA and the other works, was the first owner of copyright in those works and upon his death in 1962, the copyright devolved upon his legal heirs – his widow and three sons – under the law of succession, thereby vesting them as co-owners of the copyright.

Section 19 of the Copyright Act, 1957 provides that no assignment of the copyright in any work shall be valid unless made in writing and signed by the assignor or by his duly authorised agent. The court’s analysis of the licence purportedly granted by Basant Kumar was informed by the statutory requirement that any dealing with copyright had to comply with the formal requirements of the Act and that a unilateral grant of licence by one co-owner without the consent of the other co-owners was invalid.

Section 44 of the Copyright Act, 1957 provides for the maintenance of a Register of Copyrights at the Copyright Office, in which the names and titles of works, the names and addresses of authors, publishers and copyright owners and such other prescribed particulars may be entered. The court held that this provision established an optional register for evidentiary and administrative purposes and did not impose any mandatory registration requirement on authors or copyright owners as a condition of acquiring or enforcing their rights.

Section 45 of the Copyright Act, 1957 provides that the author or publisher or owner of copyright in any work or any other person interested in the copyright may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for the entry of particulars of the work in the Register of Copyrights. The court’s analysis of the word “may” in this provision – as permissive rather than mandatory – was the cornerstone of its holding that registration was optional and not a condition precedent for enforcing copyright.

Section 55 of the Copyright Act, 1957 confers upon the owner of copyright in any work the right to institute civil proceedings for infringement, including the right to seek injunctive relief, damages and accounts of profits. The court’s affirmation that unregistered copyright owners were entitled to maintain suits for infringement was grounded in the plain language of this provision, which conferred the right to sue on “the owner of copyright” without qualifying that expression by reference to registration.

Reasoning of the Court

The Division Bench approached the two central questions – the mandatory nature of copyright registration and the rights of co-owners of copyright – with a close attention to the text and scheme of the Copyright Act, 1957 and with a careful assessment of the competing judicial authorities on these questions from different High Courts across India.

On the question of mandatory registration, the court began by examining the decision of the Madhya Pradesh High Court in Mishra Bandhu Karyalaya v. S. Koshel, upon which the defendants placed considerable reliance. That decision had held that Sections 13 and 45 of the Copyright Act, read together, made registration a condition for the acquisition of copyright with respect to a book and that an unregistered copyright was not enforceable in courts of law. The Allahabad High Court found this reasoning fundamentally flawed. It observed that Section 13 of the Copyright Act unambiguously provided that copyright subsisted in original literary, dramatic, musical and artistic works without any reference to or qualification by registration. There was nothing in the language of Section 13 that conditioned the subsistence of copyright upon the entry of the work in the Register of Copyrights and the Madhya Pradesh High Court had read into the provision a requirement that was not contained in its text.

Turning to Section 44, the court observed that the provision established the Register of Copyrights as an administrative record in which certain particulars could be entered. The language used was that particulars “may be entered” – a clearly permissive formulation that was wholly inconsistent with the interpretation that the register constituted a mandatory condition of copyright protection. The court observed that the purpose of a register of this nature was to provide a publicly accessible evidentiary record that could assist in resolving disputes about ownership, title and priority – not to constitute the source from which the copyright right itself derived. Copyright in an original literary work was a creature of the Act, arising upon the creation of the work and the register was merely a facility for recording information about existing rights.

The court then turned to Section 45, noting that the use of the word “may” in the provision – which stipulated that authors and copyright owners “may” apply for registration – was the clearest possible legislative signal that registration was optional. The court applied the fundamental canon of statutory interpretation that the natural and ordinary meaning of a word in a statute should be preferred unless the context compelled a departure from that meaning. It found nothing in the context or scheme of the Copyright Act, 1957, that required “may” to be read as “shall” in Section 45. On the contrary, the overall scheme of the Act – which conferred rights directly upon authors by virtue of the authorship and creation of original works – was consistent only with a permissive reading of the registration provisions. The court concluded that the Madhya Pradesh High Court in Mishra Bandhu Karyalaya had plainly erred in holding that registration was mandatory and that the correct position in law was that registration under the Copyright Act, 1957, was entirely optional.

On the rights of co-owners, the court drew upon the principle articulated in Halsbury’s Laws of England – that one joint author cannot reproduce the work or grant a licence to others to reproduce it without the consent of the other joint authors – and applied it to the facts. Basant Kumar, as one of three co-owners of the copyright in SAPNA and the other works inherited from their father, was entitled to an undivided share in the copyright but had no authority to independently exercise the rights conferred by that copyright in a manner that excluded or prejudiced the other co-owners. The grant of a licence to the printers and publishers without the consent of Anand Kumar and Jayant Kumar was therefore an act in excess of Basant Kumar’s rights as a co-owner and was invalid as against the other co-owners.

At the same time, the court drew a careful distinction between the inability of a co-owner to unilaterally exploit the copyright and the right of a co-owner to independently enforce the copyright against infringers. The court held that while the former required the consent of all co-owners, the latter could be exercised by any one co-owner independently. This distinction was grounded in the logic that the right to institute infringement proceedings was a defensive and protective right – designed to safeguard the shared property of all co-owners against unauthorised exploitation by strangers – and that insisting on the concurrence of all co-owners as a condition of maintaining infringement proceedings would leave the copyright vulnerable to infringement whenever co-owners were in dispute or unable to cooperate.

Doctrinal Significance

The judgment in Nav Sahitya Prakash & Ors. v. Anand Kumar & Ors. occupies a position of exceptional importance in the development of Indian copyright jurisprudence on two foundational questions – the relationship between copyright registration and copyright enforcement and the rights and limitations of co-owners of copyright – both of which have continued to shape copyright law and practice in India in the decades since the decision was pronounced.

On the question of registration, the Allahabad High Court’s clear and authoritative rejection of the mandatory registration theory articulated in Mishra Bandhu Karyalaya was a decisive contribution to the consolidation of what is now the settled position in Indian copyright law: that copyright arises automatically upon the creation of an original work and that registration is an optional evidentiary facility rather than a condition of copyright subsistence or enforceability. The significance of this contribution is underscored by the fact that the Allahabad High Court’s position was subsequently endorsed and applied by the High Courts of Madras, Calcutta, Kerala, Delhi, Andhra Pradesh and Patna and by the Full Bench of the Madhya Pradesh High Court in K.C. Bokadia & Anr. v. Dinesh Chandra Dubey – which expressly cited Nav Sahitya Prakash with approval and declared Mishra Bandhu Karyalaya to have been wrongly decided. The decision thus served as a critical turning point in what had been a contested area of Indian copyright law and its resolution of the issue in favour of automatic copyright protection without mandatory registration aligned Indian law firmly with the international consensus reflected in the Berne Convention for the Protection of Literary and Artistic Works, to which India is a signatory and which prohibits Contracting Parties from making the enjoyment or exercise of copyright conditional upon the fulfilment of any formality.

On the rights of co-owners, the court’s articulation of the principle that one co-owner of copyright cannot grant a licence without the consent of the other co-owners has become one of the most widely cited and consistently applied principles in Indian copyright law concerning jointly owned works. The principle has been applied and reaffirmed in a series of subsequent decisions spanning diverse factual contexts – from disputes between co-authors of literary and musical works to conflicts between co-producers of cinematographic films – and has been relied upon by the Bombay High Court and the Delhi High Court in significant cases involving the exploitation of jointly owned film copyrights. The Bombay High Court’s reliance on Nav Sahitya Prakash in resolving a dispute over the satellite and digital exploitation of a Bollywood film – where a co-owner sought to restrain the other from exploiting the film without consent – is illustrative of the enduring practical relevance of the principle.

The companion holding – that a co-owner may independently institute infringement proceedings against a third party without joining the other co-owners – is an equally important contribution to the law of jointly owned copyright. This holding recognised the practical reality that co-owners of copyright are frequently in dispute with each other and that requiring the concurrence of all co-owners as a condition of enforcing copyright against infringers would create a significant gap in the protection available to jointly owned works. By enabling each co-owner to independently police the copyright against third-party infringers while being unable to independently exploit it in derogation of the other co-owners’ rights, the court struck a balanced position that protected both the shared commercial interests in the copyright and the individual rights of each co-owner to seek legal redress against unauthorised use.

The decision also has significance in the context of the law of succession and copyright inheritance in India. By treating the three sons of Ram Naresh Tripathi as co-owners of the copyright inherited from their father and by applying the principles of joint copyright ownership to inherited copyright, the court confirmed that the co-ownership framework applicable to jointly authored works applied equally to copyright that had devolved upon multiple heirs upon the death of the sole author. This clarification has practical importance for the management and exploitation of literary and artistic estates in India, where the death of an author without a specific testamentary disposition of copyright frequently results in the copyright vesting in multiple heirs who must then navigate the constraints of co-ownership.

Finally, the judgment’s contribution to the law of statutory interpretation deserves separate recognition. The court’s rigorous application of the principle that the natural and ordinary meaning of “may” is permissive – and its refusal to depart from that natural meaning in the absence of any contextual compulsion – represents a model of purposive yet text-faithful statutory interpretation that has been cited with approval in subsequent cases on copyright registration from multiple High Courts across India. The reasoning that the scheme of the Copyright Act as a whole was inconsistent with mandatory registration, because the Act conferred rights directly upon authors by virtue of their creative labour and not by virtue of administrative compliance, remains the most cogent and complete judicial articulation of the theoretical foundation of the non-mandatory registration position in Indian copyright law.

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