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MANU/KE/0011/1989 Equivalent Citation: AIR1989Ker49 IN THE HIGH COURT OF KERALA C.M.P. Nos. 31410 of 1987 in C.M.A. No.

230 of 1987 Decided On: 07.12.1987 Appellants: V.T. Thomas and Ors. Vs. Respondent: Malayala Manorama Co. Ltd. Hon'ble Sukumaran, J. Counsels: For Appellant/Petitioner/Plaintiff: K.S. Rajamony and Sebastian Paul, Advs. For Respondents/Defendant: K.P. Dandapani and Bumathi Dandapani, Advs. Subject: Media and Communication Subject: Intellectual Property Rights Catch Words Mentioned IN Acts/Rules/Orders: Copyright Act, 1957 - Sections 2 and 17; Civil Procedure Code (CPC), 1908 - Section 96 - Order 39, Rule 4 Cases Referred: Bhaskaran v. Ambika, 1977 Ker LT 476; Alice v. Thommen, 1983 Ker LT 97; Abdul Shooker Sahib v. Umachander, AIR 1976 Mad 350; Parijatha v. Kamalaksha Nayak, AIR 1982 Kant 105 Citing Reference: Judges:

Bhaskaran v. Ambika, Alice v. Thommen Abdul Shooker Sahib v. Umachander Parijatha v. Kamalaksha Nayak, MANU/KA/0071/1982

Discussed Mentioned Mentioned Mentioned

Case

Note:

Intellectual Property Rights - copyright - Sections 2 and 17 of Copyright Act, 1957 and Section 96 and Order 39 Rule 4 of Code of Civil Procedure, 1908 author of artistic work is the proprietor of copyright in artistic work - artistic work of author made as an employee pass on to employer while employee is working under employer - this process comes to an end once employment terminates - in such case copyright vests with author.

ORDER Sukumaran, J. 1. A very important issue is involved in this interim petition in an interlocutory matter. 2. More arguments, than would have been necessary for the disposal of the appeal itself, had been advanced on either side. Having regard to the frame of the petition and the character of the order, to be passed, conclusions have to be as brief as possible. It would be superfluous to reiterate that the conclusions indicated are provisional in character. (Indication of such provisional views are not impermissible even in the course of arguments -- is an opinion entertained by many jurists. One of the eminent men in that line is Lord McCluskey and his views are stated in the Reith Lectures, now published under the title 'Law, Justice and Democracy'.) 3. A definite conclusion is therefore essential, in relation to a final disposal of a matter, albeit interlocutory in character, despite the provisional nature of the conclusion. Supportive reasons, of necessity, must be there as essential ingredients of a judicial conclusion. Judges have therefore necessarily to state, (as did Lord Avory in some distant past) : "I may be right or wrong, perhaps more often wrong than right; but I have no doubt about my conclusion." 4. The dispute is between an ancient and established publishing house -- Malayala Manorama Co. Ltd., 'Manorama' for short on the one hand and a reputed cartoonist and a different publication -- the Kala Kaumudi -- (different in its pattern, perspective and style) on the other. 5. The matter arises in a suit filed under the provisions of the Copyright Act, 1957 (hereinafter referred to as 'the Act'). In aid of, and as part of the reliefs claimed in the suit, an interlocutory relief of a far-reaching effect was also sought for. The Court below granted it. ad interim and ex parte. 6. It is open to the affected parties, the defendants, to invoke, Order 39, Rule 4 for a variation of that order. The defendants, however, appear to entertain a feeling that the interim order is so unjust and so oppressive that a permissible remedy by way of a direct appeal to the High Court could be immediately and justifiably invoked, even before and, without taking to, such necessarily cumbersome and pos sibly-time-consuming process of Rule 4.

7. There is a question whether the appeal itself is not maintainable. A preliminary contention and prolonged arguments about the entertainment of the appeal had been urged. For the purpose of this interlocutory matter, I would assume, for reasons indicated in greater detail hereinafter, that the appeal is maintainable. Even when the appeal is maintainable, it is for the appellate Court to decide whether it should entertain the appeal at all. Ordinarily, I would n ot have intervened in an appeal from an ad interim ex parte order passed under Rule 39, Order 1(a), having regard to the stage at which the appellate jurisdiction is invoked. There are compulsive situations, however, where the exercise of the appellate jurisdiction is mandated to avert a possible deflection of the course of justice, when the affected party is relegated to the routine process of fighting the interlocutory matter under the normal procedure of Order 39, Rule 4. The present is one such case, is my conclusion. 8. The literate Kerala would always remember with affection, the childish characters, Boban and Molly, presented to them through the cartoon pages. Children have been enjoying throughout their pranks and mischiefs, their adventures and even admonishable actions. The companion characters include their 'Daddy' (a busy lawyer but without much of exacting briefs) and 'Mummy' and the President of the local authority with his unenviable share of intellectual acumen, and, last but not the least the chummy cur. Toms, as he is popularly known -- V. T. Thomas, as described in the plaint -- has presented them through the pages of Manorama. The arrangement under which such presentation was made, changed from time to time. Initially, he was 'getting small amounts by slips which have to be prepared and sanctioned every week and every month'. He was treated as a journalist and fitted into the Sub -Editors scale (Rs. 525/-per month) and assigned the main function "to draw Boban and Molly in the Weekly." (See K. M. Mathew's letter dt. 13-11-1967). There is no dispute that he retired from that concern on 30th June, 1987. 9. There is no retirement for an artist. The creative faculty, the gift with which an artist is endowed, need not fail, even as he saunters along the shadow of the evening of his life. Toms felt so. Toms continued his artistic productions; those presentations, however, appeared in a rival publication --the Kala Kaumudi. Then came the rub. And in quick succession came the suit and the injunction petition, and the ad interim order of the Court below. 10. I have assumed that all the allegations in the plaint are correct. I have also taken the documents presented on behalf of the plaintiff on their face value; that is to say, without an explanatory background as could be attempted by the defendants in the written statement orthe counter-affidavit. And I have considered the submissions on behalf of the respondent-plaintiff, in all aspects, endeavouring to understand them in the light of the principles ju dicially laid down by decisions available here and elsewhere, for over a century. 11. As regards works of Toms, made and published in Manorama during the time he was an employee of Manorama, I am disinclined to disturb the present order. It means that neither Toms nor any other publisher could have the right to republish the series of the cartoons drawn by Toms and published by Manorama during that period, till the final disposal of the interlocutory petition or the suit as the case may be. Even at that poi nt of time, the rights of parties would be as indicated in the order or decree for the time being in force. 11. In coming to that conclusion, I proceed on the basis that Toms is the author of the artistic works. (The idea is expanded and explained in greater detail later). Ordinarily and generally, the author would be the proprietor of the copyright in the artistic works. Commercial organisation has its interplay even in relation to artistic inspiration and its resultant production. Statutory recognition of such consideration has its reflection in

Section 17 of the Act. My understanding of the provisions under Section 17(a) and (c) of the Act is that, prima facie, in relation to such productions, the employer has a statutorily recognised copyright in those productions, as those productions were made by him at a time when he was the employee. 12. Then comes the next question, and the more important one, particularly from the point of view of the appellant publishers who have entered into an arrangement with Toms for presenting these characters and cartoons through their publication, 'Kalakaumudi'. With the termination of th e employment of Toms with Manorama the restrictive inhibitions in relation to his artistic formulations linked with Section 17 have been removed -- is the contention of the appellant. This was attempted to be countered on behalf of the respondent by leaning, and heavily leaning, on Section 17(c), a proviso to the general provision conferring the right of copyright on th e author of work. The proviso reads : "Provided that XXXXX C. in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which Clause (a) or Clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;" 13. To the repeated enquiries from the Court, counsel for the respondent strongly emphasised his contention based on what according to him was the scope and ambit of Section 17(c). According to him, even as regards future cartoons, Manorama is the 'author' as understood in that section, and Manorama is also the employer referred to in the latter limb of that provision. Section 17(c), according to counsel, has the effect of transferring for all time to come (subject of course, to the inescapable limitations of human institutions) the potential productions attributable to the artistic genius of Toms. 14. It is unnecessary for the purpose of this case to recapitulate how even primitive societies have been zealous in preserving their copyrights. The Pygmies of Andamans had that strong feeling in relation to their musical compositions. And so too the 'Indians' of America of the early times. (See Latham : In Quest of Civilisation, Page 37). The history of the Act would indicate that the competing claims between the artist's ambitions and the claims of the commercial organiser, had been reconciled by legislative bodies. There have been conventions discussing that vexed topic. Formulations of the conventions were rendered obsolete by the unprecedented pace of the march of science. Further conferences and discussions have followed in their wake; and some legislative amendments too. The parties have, therefore, to look to the statutory provision, to find out what their due share in relation to a particular artistic production is. They have to understand the limits of their rights by gauging the language of the legislature. 15. The interpretative exercise of an enactment like the Copyright Act must, according to me, recognise the plenitude of artistic liberty. A different approach would be against the larger objectives of the publishing houses themselves, in the long rua So v iewed, it would be against public interest also, in a way. Doubtless, commercial organisers (I do not use the term 'commercial exploiters', as it may have a perjorative sense) also haye had their recognisable role in publicising artistic production and tak ing them from the inner recesses of the places to the drawing rooms and thereafter to the fields and factories (and even offices). Co-operation between the artist and the organiser can make many a brilliant bloom to appear in the literary field. Confrontation can be disastrous. When Court is forced to resolve, a controversy, it cannot abdicate its functions and run

away from the problems -- it would do better to lean in favour of the artist. That is my approach. 16. The term 'author' occurring in Section 17(c) is defined under Section 2(d). That term has to be understood in relation to a 'work'. Two different entities ar e visualised in the sub-section, the 'author' and the 'employer'. It is impossible to imagine that in relation to any artistic work, the same person would simultaneously be the author and the employer. It is therefore unassumable that as regards the cartoo ns and caricatures produced by Toms, Manorama is the author. Toms is the person who clothes the idea in form. He is not a mere shorthand writer transcribing an author's stenographed words. Toms is the person who impregnates an idea; one who actually executes a design. It is Toms' hands which fix the picture upon the paper. Tomsis therefore the author. In absence, his authorship of the content and form of the cartoon series way back in 1957 (at a time when he was not the employee of Manorama as is inferable from Para 21 of the plaint itself) ordinarily entitles him to the copyright. 17. The artistic works of an author made as employee, and while in the course of his employment, pass on to the employer in contingencies postulated, inter alia in Section 17(c). This process comes to an end in certain situations. The termination of the employment is one such situation. There has been such a situation in the present case. It would then follow that as regards the future productions of Toms, there is no inhibition arising out of the statutory sanction under Section 17(c). He is free to draw. He is independent to take his brush and draw the lines and create the figures. He can give life to his characters as he wishes; and he can present them in such media as he prefers. 18. Plaintiff pictured the popularity of the weekly magazine Manorama. The fact that Toms commences the publication of his undoubtedly popular cartoon series of Boban and Molly in another publication, is not likely to affect adversely the prospects of circulation of Manorama in an irreparable way. A plea that the publication of the cartoon series in another magazine would spell an irreparable ruin for Manorama, is only to be stated to be rejected. It will be wholly unreasonable even to put forward such an assumption. Should it happen that any such impact is felt, that is remediable by monetary compensation, if the plaintiffs contention ultimately prevails. There are indications that the Manorama appeared with Boban and Molly even during short spells of absence of Toms. (See para 5 of the plaint). It was represented that even now, that weekly contains the Boban and Molly cartoon cloumn. so drawn by some other cartoonist. 19. About the maintainability of the appeal; two decisions of this Court take the view that the appeal is maintainable; Bhaskaran v. Ambika 1977 K LT 476 and Alice v. Thommen 1983 KLT 97. They are binding on me. The Madras High Court, it is pointed out, took a different view vide Abdul Shooker Sahib v. Umachander AIR 1976 Mad 350. The substantial reasoning in the decision of the Madras High Court did not appeal for acceptance to the Karnataka High Court, which reached nevertheless the same conclusion as that of the Madras High Court. The reasoning as contained in Parijatha v. Kamalaksha NayakMANU/KA/0071/1982 : AIR 1982 Kant 105, prima facie, is not strong enough to persuade me to dissent from the earlier view repeatedly taken by this Court, when that view has held the field for a long time past. I hold that the appeal is maintainable. 20. In the light of the discussion, I do not find even an arguable case for the plaintiff -respondent in relation to the future artistic productions of Toms. That conclusion warrants an interference with the interlocutory order passed by the Court below. 21. That portion of the order which has the effect of precluding Toms hereafter from drawing the cartoon series "Boban and Molly" and preventing the appellant-publishers from publishing them individually or in a series, (sic)

22. It is better that the appeal itself is posted and disposed of. The disinclination of either counsel to have the appeal itself heard necessitated the pronouncement of this interim order. The appeal can be posted on as near a date as is possible. The office will post the appeal on 14 -12-1987. 23. Manorama has a tradition to cherish. Its roots have gone deep in many fields including journalism and literature. The correspondence produced in this case, contains some glow of the refined human values and emotions. How Toms wrote to 'Mathewkuttichayan' (that was how K. M. Mathew who is acknowledged as the leading light of Manorama is known to many) cherishing the value of the latter's advice and expressing sincere gratitude for his snow soft correctional approach. A revival of that good personal relationship would be a welcome development even if parties agree to disagree. Assuming that Manorama has some semblance of a claim, that mighty publishing House which has contributed much to enrich the literature and culture of Kerala, can, in larger public interest and for a better understanding with the world of writers and artists, afford to act magnanimously, -- a gracious gesture, a dignified retreat. That is a fleeting thought of a vexed Court A gratuitous advice is not the piece of ice on which the eye may spy when feud's fever is unabatedly high. Yet it is there. 24. The petition is disposed of as above.