Copy Right Act (Act 14 of 1957), 1957--Whether in view of the provisions of the Copy Right Act 1957 an existing and future rights of music .... composer, lyricist is capable of assignment under s. 18 when he grants a licence or per- mission u/s. 30 to an author (owner) of a cinematograph film for its incorporation in the sound track of a cinematograph film--Whether the producer of a cinematograph film can defeat the same by engaging in the same person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r), (v), (y), 13,14,17,18, 19 22, 26, 30 and 34 of the Act.

The appellant society was incorporated in terms of section 2(r) of the Copyright Act. 1957 (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of s. 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy- rights and to have authority to grant the aforesaid li- cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel- lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li- cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub- lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under s. 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos- er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato- graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per- mission not only of the owner of the copyright in the cine- matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor- porated in the cinematograph film, as according to s. 13(4) of the Act, the copyright in a cinematograph film or a record does not effect the separate copyright in any work in respect of which or a substantial part of which the film or as the case may be, the record is made (4). The provi- sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under s. 18(b) by relinquishment under s. 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro- ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under s. 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat- ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under s. 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo- nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under s. 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith- standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of s. 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co-exist and need not conflict. [223 A-C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F-G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer's copyright which he does only if the 'music' is performed or produced or repro- duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta- tion or cinema theatre. [223 C-E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exist each fulfil- ing itself in its delectable distinctiveness. [224 A-B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder- ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un-Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga- tion each country in its law must protect such rights wher- ever originally is contributed. [224 E-H] Per Jaswant Singh J. (1) The existing and future right of music ........ composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D-E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine- matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of s. 34, s. 14(1)(a)(iii) and s. 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro- ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu- sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex- press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G-H; 221 A-G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music ........ composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of s. 17, a cinematograph film producer becomes the. first owner of the copyright and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on one hand and the producer of the cinemato- graph film on the other. [222 D-F] Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval. 1977 AIR 1443, 1977( 3 )SCR 206, 1977( 2 )SCC 820, , PETITIONER: INDIAN PERFORMING RIGHT SOCIETY LTD. Vs. RESPONDENT: EASTERN INDIA MOTION PICTURES ASSOCIATION DATE OF JUDGMENT14/03/1977 BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. CITATION: 1977 AIR 1443 1977 SCR (3) 206 1977 SCC (2) 820 ACT: Copy Right Act (Act 14 of 1957), 1957--Whether in view of the provisions of the Copy Right Act 1957 an existing and future rights of music .... composer, lyricist is capable of assignment under s. 18 when he grants a licence or per- mission u/s. 30 to an author (owner) of a cinematograph film for its incorporation in the sound track of a cinematograph film--Whether the producer of a cinematograph film can defeat the same by engaging in the same person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r), (v), (y), 13,14,17,18, 19 22, 26, 30 and 34 of the Act. HEADNOTE: The appellant society was incorporated in terms of section 2(r) of the Copyright Act. 1957 (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of s. 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy- rights and to have authority to grant the aforesaid li- cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel- lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li- cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub- lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under s. 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos- er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato- graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per- mission not only of the owner of the copyright in the cine- matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor- porated in the cinematograph film, as according to s. 13(4) of the Act, the copyright in a cinematograph film or a record does not effect the separate copyright in any work in respect of which or a substantial part of which the film or as the case may be, the record is made (4). The provi- sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under s. 18(b) by relinquishment under s. 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro- ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under s. 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat- ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under s. 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo- nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under s. 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith- standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of s. 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co-exist and need not conflict. [223 A-C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F-G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer's copyright which he does only if the 'music' is performed or produced or repro- duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta- tion or cinema theatre. [223 C-E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exist each fulfil- ing itself in its delectable distinctiveness. [224 A-B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder- ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un-Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga- tion each country in its law must protect such rights wher- ever originally is contributed. [224 E-H] Per Jaswant Singh J. (1) The existing and future right of music ........ composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D-E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine- matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of s. 34, s. 14(1)(a)(iii) and s. 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro- ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu- sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex- press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G-H; 221 A-G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music ........ composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of s. 17, a cinematograph film producer becomes the. first owner of the copyright and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on one hand and the producer of the cinemato- graph film on the other. [222 D-F] Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 967 of 1975. (From the judgment and order dated 13-2-1974 of the Calcut- ta High Court in Copyright No. 2/73). A.K. Sen, E.P. Skons James, J. 1. Mehta, J. Roy Choud- hary, S.K. Mehta, K.R. Nagaraja and P.N. Puri, for the appellant. S. Chaudhury, R.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22. J.C. Bhat, Atul Munim and B.R. Agarwala, for respondents 6- 8. B. Sen, B.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 12 and 22. J.L. Nain, Atul Munim and B. R. Agarwala, for re- spondent No. 19. The Judgment of the Court was delivered by Jaswant Singh, 3., V.R. Krishna Iyer, J. also gave a separate opin- ion. JASWANT SINGH, J. This appeal by certificate granted under Article 133(1) of the Constitution by the High Court of Judicature at Calcutta which is directed against its judgment dated February 13, 1974, raises the following substantial question of law of general importance :-- "Whether in view of the provisions of the Copyright Act, 1957, an existing and future rights of music ...... composer, lyricist is capable of assignment and whether the producer of a cinematograph film can defeat the same by engaging the same person." The facts giving rise to the appeal are: The Indian Performing Right Society Ltd. (hereinafter referred to for the sake of brevity as 'the IPRS'), the appellant before us, was incorporated in the State of Maharashtra on August 23, 1959, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or granting li- cences for performance in public of all existing and future Indian Musical works in which copyright subsists in India. The incorporation of the IPRS was in terms of section 2(r) of the Copyright Act, 211 1957 (Act 14 of 1957) (hereinafter referred to as 'the Act') which was enacted after taking into consideration the Report of the (British) Copyright Committee,1952, the suggestions of the various Ministries of the Government of India and the State Governments, the Indian Universities and certain interested industries and associations who were invited to send their comments on the subjects of copyright. The IPRS has amongst its members the composers of musical works, authors of literary and dramatic works and artists. In accordance with the provisions of section 33 of the Act, the IPRS published on September 27, 1969 and November 29, 1969 in the 'Statesman' and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences far perform- ance in public of works in respect of which-it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences. A number of persons including various associations of producers of cinematograph films who claimed to be the owners of such films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the aforesaid tariff in accordance with the provisions of section 34 of- the Act repudiating the claim of the IPRS that it had on behalf of its members authority to grant licences for. performance in public of all existing and future musical works which are incorporated in the sound track of cinematograph films in which copyright may subsist in India or the right to collect in relation thereto any fees, charges or royalties. The association of producers averted inter alia that their members engaged composers and sound writers under contracts of service for composing songs to be utilised in their films; that the musical works prepared by the composers of lyric and music under contract of service with their mem- bers-producers of the cinematograph films--having been utilised and incorporated in the sound track of the cinemat- ograph films produced by the latter, all the rights which subsisted in the composers and their works including the right to perform them in public became the property of the producers of the cinematograph films and no copyright sub- sisted in the composers which they could assign to and become the basis of the claim of the IPRS under section 33 of the Act; that their members i.e. the producers of cine- matograph films being the authors and first owners of the copyright in the cinematograph films produced by them had the exclusive right inter alia to cause the said films in so far as the same consisted of sounds (which include musical works) to be heard in public as also the exclusive right to make records embodying the sound track of the films produced by them (including any musical work incorporated therein) and to cause the said records to be beard in public; that in the making of a cinematograph film as contemplated by the Act a composer composes a lyric or music under a contract of service or for valuable consideration which is substantial a music director sets it to tunes and imparts music to it and a singer sings the same but none of them nor any one of their aforesaid works can and have any separate copyrights; that motion picture is the combination of all arts and music in the sound track which cannot be detached from the film itself; that the purpose of making a motion picture is not only to complete it but also to publicly exhibit it through- out the world; that having regard to the provisions of the Act the' copyright in the case of 212 a cinematograph film vests in the owner of the film as defined in section 2(d) (v) of the Act; and that in the premises any assignment purporting to have been made in favour of the IPRS was void and of no effect and was incapa- ble of conferring any rights whatsoever in such musical works on the IPRS. The Cinematograph Exhibitors Association of India also filed objections challenging the right of the IPRS to charge fees and royalties in respect of performance in public of the musical works incorporated in the sound track of the films. Besides raising contentions identical to those raised by various associations of producers they averred that copyright in a cinematograph film which vested in the producers meant copyright in the entirety of the film as an integrated unit including the musical work incorporated in the sound track of the film and the right to perform the work in public; that in accordance with the agreement with the distributors of films the exhibition of cinematograph film includes the right to play in public the music which is an integral part and parcel of the film; that the producers lease out copyrights of public performance of the films vested in them to the distributors who give those rights to the exhibitors an agreement and that when an exhibitor takes a licence for exhibition, it is complete in all respects and a third party like the IPRS cannot claim any licence fee from the exhibitors. On the aforesaid objections being referred to it for determination under section 35 of the Act, the Copyright Board expressed the view that in the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed or written and that they could assign the performing right in public to the IPRS. The Copyright Board further held that the tariff as published by the IPRS was reasonable and the IPRS had the right to grant licences for the public performance of music in the sound track of copyrighted Indian cinematograph films and it could collect fees, royalties and charges in respect of those films with effect from the date on which the tariff was published in the Gazette of India. Aggrieved by the decision of the Copyright Board, the objectors preferred an appeal under section 72 of the Act to the High Court which allowed the same holding that unless there is a contract to the contrary, a composer who composes a lyric or music for the first time for valuable considera- tion for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning and that under proviso. (b) to section 17 of the Act, the owner of the film at whose instance, the composition is made, becomes the first owner of the copy- right in the composition. The High Court further held that "the composer can claim a copyright in his work only if there is an express agreement between him and the owner of the cinematograph film reserving his copyright". The High Court also held that "though section 18 of the Act confers power to make a contract of assignment, the power can be exercised only when 213 there is an 'existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect". Dissatisfied with this decision, the IPRS has,as already stated, come up in appeal to this Court. The copyright law in our country being fairly complicat- ed because of the involved language in which some of its provisions are couched and the case being of first impres- sion, learned counsel for the parties have tried hard to help us in solving the knotty points by advancing copious and able arguments. Appearing on behalf of the appellant, Mr. Ashok Sen has urged that the author (composer) of a literary or musical work has copyright which includes inter alia the exclusive right (a) to perform the work in public 'and (b) to make any cinematograph film or a record in respect of the work; that copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or performs the work in public by exhibiting the cinematograph film; that if a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the permission not only of the owner of the copyright in the cinematograph film but also the permission of the owner of the copyright in the literary or musical work which is incorporated in the cinematograph film, as according to section 1. 3 (4) of the Act, the copyright in a cinematograph film or a record does not affect the separate copyright in any work i.n respect of which or a substantial part of which, the film, or as the case may be, the record is made; that the provisions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work em- bodied in a cinematograph film; that the only modes in which the author of a literary or musical work ceases to be the owner of copyright m the work are (a) by assignment, '(b) by relinquishment and (c) by the composer composing the work in 'the course of his employment under a contract of service with an employer in which case, the employer becomes the owner of the copyright in the musical work; that in the case of an assignment of copyright in future work and the employ- ment of the author to produce a work under a contract of service, the question of priorities will be decided ac- cording to the principle "where equities are equal, the first in time shall prevail". Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J.C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J.L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinemato- graph film (which expression, according to Copinger and Skone James on COPYRIGHT, means "any record of sounds which is incorporated in any print, negative, tape or other arti- cle on which the film or part of it, in so far as it con- sists of visual images, is recorded, or which is issued by the maker 214 Of the film for use in conjunction with such an article"); that the contention advanced on behalf of the appellant that copyright in a literary or musical work incorporated in the sound track of a cinematograph film vests in the composer of literary or musical work and when the cinematograph film is performed i.e. exhibited in public, the composer is entitled to fee or royalty in that behalf and since the appellant is the assignee of the copyright from the composers, it has the right to collect the fee or royalty is entirely unfound- ed; that unlike (the law) in England, in India unless a music is notationally written, printed or graphically repro- duced, it is not musical work within the meaning of the Copyright Act and there is no copyright 'in songs or orches- tral pieces sung or played directly without its notation being written' that since a 'cinematograph film' is defined in section 2(f) of the 'Act as including the sound track and the 'cinematograph' is required to be construed to include any work produced by any process analogous to cine- matography, the owner of the cinematograph film is the firt owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film; that in the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in stan- zas falling within the purview of the expression "literary work" as defined in section 2(0) of the Act) has been plagiarised, there will be copyright in the film vesting in the producer; that the Act confers a separate copyright on a cinematograph film as a film, its author under section 2(d)(v) of the Act being the owner of the film at the time of its completion; that in the case of a lyric or music incorporated in the sound track of a cinematograph film, since under section 2(f) of the Act, cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the owner of copyright the. right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. They have further urged that it is not correct to say that under section 17, proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commis- sioned. According to counsel for respondents section 17 proviso (b) will equally apply if someone is commissioned to make any component part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer; that as the Act confers a sepa- rate copyright on a cinematograph film as a film, the pro- ducer can exercise both the rights conferred on him under section 14(1).(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall co-exist with those created by section 14(1)(c) and (d) of the Act, e.g. under clause (a), the 215 copyright in a literary work such as a novel entitles its author to make a cinematograph film in respect of the work, and to exercise the remaining rights created by section 14(1)(a) of the Act. But once he has licensed someone to make a cinematograph film, the licensee shall have the rights provided in clauses (c) and (d) of section 14(1) of the Act in respect of the film. We have given our earnest consideration to the submis- sions made by learned counsel for the parties. So far as the first part of the question reproduced above is con- cerned, there is no dispute between the parties. Both sides are agreed that in view of the provisions of section 18 of the Act, the material portion of which lays down that--"(1) the owner of the copyright in an existing work-or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partial- ly and either generally or subject to limitations and either for the whole term of the copyright or any part thereof; provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence, (2)where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly", the first part of the question should be answered in the affirmative. It is accordingly held that an existing and future right of music ...... composer and lyricist in their respective 'works' as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act, as also in section 19 of the Act which requires an assignment to be in writing, signed by the assignor or by his duly authorised agent. It is the second part of the question which has been a hot bed of controversy between the parties that has got to be tackled. The main point for determination in regard to this part of the question is whether the composer of lyric or musical work (which in terms of section 2(p) of the Act means only a notationally written, printed or graphically produced or reproduced music) retains a copyright in the lyric or musical work if he grants a licence or permission to an author (owner) of a cinematograph film for its incor- poration in the sound track of a cinematograph film. For a proper appreciation and determination of the contentions raised before us, it is necessary to notice certain provi- sions of the Act. The terms 'author', 'Cinematograph film', 'exclusive licence', 'infringing copy', 'musical work', 'performance' performing rights society', 'radio-diffusion' and 'work' are defined in clauses (d), (f), (j), (m), (p), (q), (r), (v) and (y) respectively of section 2 of the Act as under :-- "(d) author means,-- (i) in relation to a literary or dramatic work, the author of the work; 5--240SC I / 7 7 216 (ii) in relation to a musical work, the com- poser; (iii) ** ** ** (iv) ** ** ** (v) in relation to a cinematograph film, the owner of the film at the time of its comple- tion; and (vi) in relation to a record, the owner of the original plate from which the record is made, at the time of the making of the plate". "(f) cinematograph film includes the sound track, if any, and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography." "(j) exclusive licence means a licence which confers on the licensee or on the licen- see and persons authorised by him. to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in a work, and "exclusive licensee" shall be construed accordingly." "(m) infringing copy means,-- (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film; (ii) in relation to a cinematograph film, a copy of the film or a record embodying the recording in any part of the sound track associated with the film; (iii) ** ** ** (iv) ** ** **" "(p) musical work means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced". "(q) performance includes any mode of visual or acoustic presentation including any such presentation by the exhibition of a cinematograph film, or by means of radiodif- fusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture". "(r) performing rights society means a society, association or other body, whether incorporated or not, which carries on business in India of issuing or granting licences for the performance in India of any works in which copyright subsists". 217 (v) radio-diffusion includes communication to the public by any means of wireless diffu- sion whether in the form of sounds or visual images or both". "(y) work means any of the following works, namely-- (i) aliterary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a record". Section 13 of the Act provides as follows :-- "13. Works in which copyright subsists.--(1) Subject to the provisions of this section-and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-- (a) original literary, dramatic musical and artistic works; (b) cinematograph films; and (c) records. (2) ** ** ** (3) Copyright shall not subsist-- (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any record made in respect of a liter- ary, dramatic or musical work, if in making the record, copyright in such work has been infringed. (4) The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. (5) ** ** ** Section 14 of the Act which contains the meaning of the expression "copyright" is to the following effect :-- "14. Meaning of copyright."--(1) For the purposes of this Act: "copyright" means the exclusive right, by virtue of, and subject to the provisions of, this Act,-- (a) in the case of literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely-- (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to perform the work in public; 218 (iv) to produce, reproduce, perform or publish any translation of the work; (v) to make any cinematograph film or a record in respect of the work; (vi) to communicate the work by radio-diffu- sion or to communicate to the public by a loud-speaker or any other similar instrument the radio-diffusion of the work; (vii) to make any adaptation of the work; (viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi): (b) ** ** ** (c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely- (i) to make a copy of the film; (ii) to cause the film, in so far as it con- sists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public; (iii) to make any record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track; (iv) to communicate the film by radio-diffu- sion; (d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely-- (i) to make any other record embodying the same recording; (ii) to cause the recording embodied in the record to be heard in public; (iii) to communicate the recording embodied in the record by radio-diffusion. (2) Any reference in sub-section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing or that act in relation to a substantial part thereof". Section 17 of the Act which relates to ownership of copyright provides as under :-- "17. First owner of copyright.---Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein; Provided that-- 219 (a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agree- ment to the contrary. be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work; (b) Subject to the provisions of clause (a), in the case of a photograph taken, or a paint- ing or portrait drawn, or an engraving or a cinematograph film made. for valuable consid- eration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (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; (d) ** ** ** (e) ** ** ** Sections 22 and 26 of the Act which deal with the term of copyright in musical and other works and cinematograph films are to the following effect :-- "22. Term of copyright in published liter- ary, dramatic musical and artistic works.--Except as otherwise hereinafter pro- vided, copyright shall subsist in any liter- ary, dramatic, musical or artistic work (other than a photograph) published within the life- time of the author until fifty years from the beginning of the calendar year following the year in which the author dies. Explanation.--In this section, the refer- ence to the author shall, in the case of a work of Joint authorship, be construed as a reference to the author who dies last . "26. Term of copyright in cinematograph films. In the case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next fol- lowing the year in which the film is pub- lished". 220 Section 30 of the Act which deals with grant of licences by owners of copyright runs thus :-- "30. Licences by owners of copyright.--The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent: Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence. Explanation.--When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, is entitled to the benefit of the licence". The interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with section 14(1)(c)(iii) that the term "cinematograph film" includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a "cinematograph film" is to be taken to include the sounds embodied in a sound track which is asso- ciated with the film. Section 13 recognises 'cinematograph film' as a distinct and separate class of 'work' and de- clares that copyright shall subsist therein throughout India. Section 14 which enumerates the fights that subsist in various classes of works mentioned in section 13 provides that copyright in case of a literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work. It also provides that copyright in case of cinemato- graph film means. among other rights, the right of exhibit- ing or causing the exhibition m public of the cinematograph film i.e. of causing the film in so far as it consists of visual images to be seen in public and in so far it consists of sounds to be heard in public. Section 13(4) on which Mr. Ashok Sen has leaned heavily in support of his contentions lays down that the copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. Though a conflict may at first sight seem to exist between section 13(4) and section 14(1) (a) (iii) on the one hand and sec- tion 14(1) (c) (ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have, his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1)'(e) of the Act on completion of the cinematograph film a copyright which gives 221 him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in pub- lic. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film pro- ducer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re- strained from doing so. In other words, the author (com- poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropri- ate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio-diffu- sion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato- graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. On a conspectus of the scheme of the Act as disclosed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a 222 bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its com- pletion which is said to take place when the visual portion and audible portion are synchronized. This takes us to the core of the question namely, wheth- er the producer of a cinematograph film can defeat the right of the composer of music .... or lyricst by engaging him. The key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric there- fore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein 'and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprentice.ship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricst Can be defeated by the producer of a cinemat- ograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plain- tiff in pursuance of his engagement to give effect to cer- tain situations in the drama entitled "Lady Andley's Secret", which was to be put on the stage was not an inde- pendent composition but was merely an accessory to and a Fart and parcel of the drama and the plaintiff did not have any right in the music. For the foregoing reasons, we do not find any justification to interfere with the order of the High Court. Conse- quently, the appeal fails and is dismissed but in the circumstances of the case without any order as to costs. KRISHNA IYER, J.---The judgment just delivered is on behalf of the Court, which makes this footnote, in a sense, otiose. But I do append the abbreviated opinion solely to belight a slightly penumberal area of the law and to voice a need for legislative exploration to protect a category now left in the cold. A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more. than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that 223 ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but s. 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any 'work' notwith- standing its confluence in the film. This persistence of the aesthetic 'personality' of the intellectual property cannot cut down the copyright of the film qua film. The latter right is, as explained earlier in my learned broth- er's judgment, set out indubitably in s. 14(1)(c). True, the exclusive right, otherwise called copyright, in the case of a musical work extends to all the sub-rights spelt out in s. 14(1)(a). A harmonious construction of s. 14, which is the integral yoga of copyrights in creative works, takes us to the soul of the subject. The artist enjoys his copyright in the musical work, the filmproducer is the master of his combination of artistic pieces and the two can happily co- exist and need not conflict. What is the modus vivendi ? The solution is simple. The film producer has the sole right to exercise what is his entitlement under s. 14(1)(c) qua film, but he cannot trench on I the composer's copyright which he does only if the 'music' is performed or produced or reproduced separately, in violation of s. 14(1)(a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre. To do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in s. 17, proviso (c). So, beyond exhib- iting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer's copyright. Anywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts Society. These are the boundaries of composite creations of art which are at once individual and collective, viewed from different angles. In 'a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artists thrive, private and exclusive estate in art subsists. Man, the noblest work of the Infinite Artist, strangely enough, battles for the finite products of his art and the secular law, operating on the temporal level, guard- ians material works possessing spiritual values. The enig- matic small of Mona, Lisa is the timeless heritage of man- kind but, till liberated by the prescribed passage of time, the private copyright of the human maker says, 'hands off'. The creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic systems so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and masterS, whose works are invaluable, are victims of piffling payments. World opinion in defence of the human right to intellectual property led to internation- al conventions and municipal laws, commissions, codes and organisations, calculated to protect works of art. India responded to this universal need by enacting the Copyright Act, 1957. 224 Not the recommendations in conventions but provisions in municipal laws determine enforceable rightS. Our copyright statute protects the composite cinematograph work produced by lay-out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged, through the sound track, into the motion picture, is copyrighted by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exiSt, each ful- filling itself in its delectable distinctiveness. Section 14 has, in its careful arrangement of the rights belonging to each copyright, has a certain melody and harmony to miss which is to lose the sense of the Scheme. A somewhat un-Indian feature we noticed in the Indian copyright Act falls to be mentioned. Of course, when' our law is intellectual 'borrowing from British reports, as admittedly it is, such exoticism is possible. 'Musical work', as defined in s.2 ( p) reads: "(p) musical work means any combina- tion of melody and harmony or either of them printed, re duced to writing or otherwise graphically produced or reproduced." Therefore, copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful render- ing. It is the melody or harmony reduced to print, writing or graphic form. The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava, the lava and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, 'author', as defined in s.2(d), in rela- tion to a musical work, is only the composer and s. 16 confies 'copyright' to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitle- ment of the musician or group of musical artists to copy- right is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this observation only because act in one sense, depends on the ethos and the aesthetic best of a people; and while universal protection of intellectual and aesthetic property of creators of 'works' is an international obligation, each country in its law must protect such rights wherever originality is con- tributed. So viewed, apart from the music composer, the singer must be conferred a right. Of course, law-making is the province of Parliament but the Court must communicate to the lawmaker such infirmities as exist in the law extant. S.R. Appeal dismissed. 225

Civil Procedure Code, 1908-Or 2 R 2 (3)-Bar in respect of claim of relief in subsequent suit-The plea of bar under Or 2 R 2 (3) CPC is maintainable only if the defendant files in evidence before the trial Court the pleadings in the previous suit to prove identity of cause of action in the two suits-Inference about the bar cannot be culled merely from the plaint in the second case-Attempt to bring the pleadings of the earlier suit on record at the stage of proceedings before Supreme Court not allowed. Trade and Merchandise Marks Act, 1958, Copy Right Act-In case of continuing or recurring wrong there would be corresponding, continuous or recurrent causes of action-Action for passing off-Continuing deceit gives rise to fresh causes of action-First suit based on infringement of plaintiff's trade mark by defendants and passing off of the defendants goods as if they were plaintiff's goods-Second suit based on continuous acts of infringement of its trade mark and continuous passing of action on the part of the defendants subsequent to filing of the earlier suit and continuing till the date of filing of the second suit-Cause of action in the two suits are different-One of the ingredients of Or 2 R 2 (3) thus having not been satisfied, bar thereunder could not operate. Limitation Act 1963 S.22-In a case of continuing breach of contract or continuing tort-A fresh period of limitation runs at every moment of the time during which the breach or the tort continues. The appellant company, manufacturing and marketing waterproof goods and rubberised waterproof raincoats throughout the country under the trade mark `Duck Back', was registered under the Trade and Merchandise Marks Act, 1958 and the Copy Right Act. It filed original Suit No. 238 of 1980 in City Civil Court, Hyderabad against the respondents alleging that they were manufacturing and marketing similar products under the trade mark `Duck Back' which phonetically and visually resembles the plaintiffs trade mark resulting in confusion among consumers and amounted to passing off the appellant's goods as of the respondents'. The suit was dismissed on 6th April, 1982 on the ground that there was no infringement of the appellant's trade mark `Duck Back' by the respondents. In the year 1982 the second suit was filed in the City Civil Court, Hyderabad by the appellant against the respondents inter alia alleging that they were ill-advised and mis-informed in filing the first suit and further alleged that even after 1982, the respondents were carrying on infringement of their registered trade mark and were passing off their goods as the goods of the appellants and prayed for permanent injunction restraining the respondents from infringing their trade-mark and copy right as well as from passing off their goods as if they were of the appellant's. The trial court held that the suit was barred by the provisions of Order 2 Rule 2 Sub Rule (3) of the CPC. On appeal, the High Court held that the appellants had proved their case of pasting off against the respondents but upheld the finding of the trial court that the suit was barred by order 2 Rule 2 sub rule (3) of the CPC and thus dismissed the same. Aggrieved, the plaintiff filed the present appeals.

Allowing the appeal, this Court HELD:1.1. A suit can be said to be barred under Order 2, Rule 2 (sub rule 3) CPC if it is shown that the second suit is based on the same cause of action on which the earlier suit was based; and if the cause of action is the same in both the suits and if in the earlier suit the plaintiff had not sued for any of the reliefs available to him of that cause of action, the relief which the plaintiff had failed to pray in that suit can not be subsequently prayed for except with the leave of the Court. [702-H, 703-A- B] 1.2. As regards the plea of the respondents that suit is barred under order 2 Rule 2 sub rule (3) there is a threshold bar against them for their failure to bring on record of the trial court the pleadings of the earlier suit. No inference can be drawn in absence of the pleading of the previous suit being on record. Even before the High Court no attempt was made by them to produce the pleading in the earlier suit by way of an application for additional evidence. Production of the copy of the plaint by the respondent in the Counter Affidavit at the stage of proceedings before the Supreme Court is of no avail. [703-C, 704-G] 1.3. An action for passing off is a common Law remedy being an action in substance of deceit under the law of torts and for a fresh deceitful act, a person would naturally have a fresh cause of action. Thus every time when a person passes off his goods as those of another, he commits the act of such deceit. Similarly, when a person commits a breach of registered Trade Mark of another, he commits a recurring act of breach of such Trade Mark giving recurring and fresh cause of action at each time of such infringement. [708-C-E] 1.4. Order 2 Rule 2 sub rule (3) requires that the cause of action from the earlier suit must be the same on which the subsequent suit is based and unless there is identity of cause of action in both the suits, the bar of Order 2 Rule 2 sub rule (3) will not get attracted. Further, in cases of continuous causes of action or recurring causes of action, the bar can not be invoked. The cause of action in the first suit of 1980 was based on infringement of plaintiff's Trade Mark "Duck Back" by the defendant till the date of the suit and the grievance regarding passing off the defendant's goods as if they were plaintiff's goods, was also confined to the situation prevailing on that date. But in the second suit the grievance of the plaintiff is entirely different and is not based on any act of infringement or passing off alleged to have been committed by the defendant in 1980. But the plaintiffs grievance is regarding the continuous acts of infringement of its Trade Mark `Duck Back' and the continuous passing of action on the part of the defendants subsequent to the filing of the earlier suit and which had continued on the date of the second suit of 1982. The cause of action in the second suit is continuous and recurring. The infringement of the plaintiff's Trade Mark "Duck Back" and passing of action on the part of the defendants in selling their goods by passing of their goods as if they were plaintiff's goods, had continued all throughout uninterrupted in a recurring manner and such an action would give a recurring cause of action to the holder of the Trade Mark. [705-CE-F, 708,B] 2. By virtue of the provisions of section 22 of the limitation Act, 1973, in a case of continuing breach of contract or in a case of continuing tort, a fresh period of limitation begins to run every moment of the time during which the breach or the tort, as the case may be, continues. [709 AB] 3. As held by the High Court, on merits, the action of the defendants is actionable and amounts to acts of passing off as the waterproof raincoats manufactured by the first defendant bearing the trade mark "Dack Back" are phonetically and visually similar the those of the plaintiff bearing the trade marks "Duck Back". The plaintiff had made out a case for actionable breach of infringement of plaintiff's trade mark as well as actionable act of passing off by the defendants of their goods as if they were plaintiff's goods and, therefore, the plaintiff's suit would be required to be decreed. The judgment and order of dismissal of the plaintiff's suit as passed by the Trial Court and as confirmed by the High Court are set aside. [709-D-G] Gurbux singh v. Bhooralal, [1964] 7 SCR 831, followed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 14610 of 1996. 1997 AIR 1398, 1996( 8 )Suppl.SCR 695, 1997( 1 )SCC 99, 1996( 8 )SCALE369 , 1996(10 )JT 96 PETITIONER: M/S BENGAL WATERPROOF LIMITED Vs. RESPONDENT: M/S BOMBAY WATERPROOF MANUFACTURINGCOMPANY & ANOTHER DATE OF JUDGMENT: 18/11/1996 BENCH: A.S. ANAND, S.B. MAJMUDAR ACT: HEADNOTE: JUDGMENT: J U D G M E N T S.B. Majmudar. J. Leave granted. By consent of learned advocates of parties the appeal arising from the Special Leave Petition was finally heard and is being disposed of by this judgment. A short question arises for our consideration in this appeal. It is to the effect as to whether the suit filed by the appellant against the respondents in the Court of Chief Judge, City Civil Court, Hyderabad being Original Suit No.123 of 1982 was barred by the provisions of Order 2 Rule 2 Sub-rule (3) of the Code of Civil Procedure, 1908 (`CPC' for short). The Trial Court held that the suit was barred by the aforesaid provisions. We will refer to the appellant as plaintiff and the respondents as defendants for the sake of convenience in latter part of this judgment. A learned Single Judge of the High Court of Andhra Pradesh held on merits that the plaintiff had established its case of passing off against the defendants. However the decree of dismissal of the suit as passed by the Trial Court on the ground that the suit was barred by 0.2 R.2 Sub-rule (3) was confirmed by the learned Single Judge. As no writ appeal lies against the said order before the Division Bench of the High Court the plaintiff preferred Special Leave Petition under Article 136 of the Constitution of India and as we have granted the leave, the present appeal fell for consideration before us. The case of the plaintiff is that it is a proprietor of the trade mark bearing the word `DUCK BACK' which is registered under the Trade and Merchandise Marks Act, 1000 and also the owner of the copyright in the artistic design of the word `DUCK BACK' registered under the Copyright Act and that the plaintiff has acquired a good reputation in the Indian market for waterproof goods and rubberised waterproof raincoats, It is the further pass of the plaintiff that it markets its products under the registered trade mark `DUCK BACK' throughout the country and its product has obtained good reputation and popularity amongst the consumers as `DUCK BACK' raincoats. The plaintiff further alleges that it came to know that defendants were manufacturing and marketing similar products under the trade mark `DUCK BACK' which phonetically and visually resembled the plaintiff's trade mark resulting in confusion amongst consumers and amounted to passing off of plaintiff's goods as the goods of the defendants. The plaintiff was, therefore, advised to sue the defendants under in the City Civil Court, Hyderabad for infringement of registered trade mark `DUCK BACK' and it prayed, inter alia, for permanent injunction on that basis. The learned Trial Judge in that suit being Original Suit No.238 of 1980 which will be styled as the first suit, passed the judgment and degree dated 6th April 1982 and dismissed the same on the ground that there was no infringement of plaintiff's trade mark goods named and styled as `DUCK BACK' and, therefore, the reliefs as prayed for in the plaint were not maintainable and could not be granted. It is the case of the plaintiff that it was misinformed and ill-advised when it instituted the first suit for injunction restraining the defendants from manufacturing, selling, distributing and sealing in any manner with the waterproof `DUCK BACK' raincoats. The plaintiff further alleged that even thereafter in 1982 it came to its notice that defendants were carrying on the infringement of plaintiff's registered trade mark and were passing off their goods as goods of the plaintiff and, therefore, they were liable to be restrained by way of permanent injunction from infringing the trade mark and copyright of the plaintiff as well as from passing off their goods is the second suit and from which the present appeal arises was registered as Original Suit No.123 of 1982 before the Chief Judge, City Civil Court, Hyderabad. It is alleged in this second suit that by two letters both dated 30th April 1982 addressed to the defendants separately the plaintiff called upon the defendants to desist from marketing, selling or offering for sale the said goods in Class 25 with the mark `DACK BACK'. It was further averred in the plaint of the second suit that by two letters both dated 25th May 1982 Mohammed Raftullah, acting as Advocate for both the defendants, baldly refuted the factual statements in the plaintiff's said letters dated 30th April 1982 and set up the defence of res judicata and also purported to challenge deny the very validity of the registration of the plaintiff's trade mark `DUCK BACK'. It was further averred in the plaint paragraph 19 that the cause of action arose on or about 6th April 1982 and continues to arise de die et diem within the jurisdiction of the Trial Court. In pars 20 of the second suit it was further averred that the cause of action arose at Hyderabad where the defendants were indulging in the illegal action, sought to be restrained in the suit and also where the defendants reside. The prayers in the second suit read as under : "Therefore, the Hon'ble Court may be pleased to grant : (a) permanent injunction restraining the defendants and each of them, whether acting by themselves or by their servants or agents from infringing the plaintiff's registered trade mark No.4378 as OI 29.8.1942 being the word mark DUCKBACK by the USE IN COURSE of trade the mark DACKBACK or any other near resemblance to the plaintiff's said trade mark. (b) a permanent injunction restraining the defendants and each of them, whether acting by themselves or by their servants or agents from doing the following acts, that is to say, passing causing or assisting others to pass off waterproof of rubberised material, air pillows, shoes, hot water bags and other goods in Class 25 not being OI the plaintiff's manufacture by advertising, offering for sale or selling any imitation of the plaintiff's said goods by attaching to the same to the mark DACKBACK or any colourable imitation of the plaintiff trade mark DUCKBACK. (c) an injunction restraining the defendants their servants or agents from infringing the plaintiff's copyright being NO. A-4548/69 dated 19.7.1969 in any way ; (d) delivery up for construction all blocks. dies and other implements for the printing or uttering the mark DACKBACK with all papers containing the said mark such as letter beads. bills or advertisements material ; (e) an enquiry into damages and such sum as may he found due thereon ; (f) to grant such other relief or reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case ; (g) award costs of the suit." The defence. amongst others, was that they had nor infringed the plaintiff's trade mark and in any case the suit was barred by res judicata and by Order 2 Rule 2 sub- rule (3), CPC in view of the fact that the earlier suit based on the same cause of action was already dismissed by the same cause of action was already dismissed by the Trial Court on 6th April 1982. As noted earlier. the learned Trial Judge dismissed the suit on the ground that it was barred by Order 2 Rule 2 sub-rule (3) of CPC. So far as the learned Single Judge of the High Court was concerned, he agreed with the plaintiff on merits and cook the view that the waterproof raincoats manufactured by the first defendant bearing trade mark `DACK BACK' phonetically and visually resembled the waterproof raincoats manufactured by the plaintiff bearing trade mark `DUCK BACK'. Thus, on merits the learned Single Judge of the High Court held in favour of the plaintiff. However, he persuaded himself to hold that the present suit, namely, the second suit is barred by Order 2 Rule 2 sub-rule (3), CPC and, therefore the decree of the Trial Court dismissing the second suit deserved to be confirmed. Of course, the learned Single Judge of the High Court also took the view in favour of the plaintiff that the suit was not barred by res judicata. At the time of hearing of this appeal it became obvious that the fate of this litigation depends upon the finding on the moot question whether the second suit of the plaintiff is barred by Order 2 Rule 2 sub-rule (3), CPC as on merits are High Court has agreed with the plaintiff and there are no cross objections or cross special Leave Petitions. The learned counsel for the respondent-defendants fairly stated that if this Court takes the view that the suit is not barred as held by the High Court plaintiff's suit would be required to be decreed. Under these circumstances we now proceed to address ourselves to the sole moot question as to whether the second suit filed by the plaintiff was barred by Order 2 Rule 2 sub-rule (3), CPS. The said rule, its sub-rules and illustration below it read as under : "2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action ; portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.-Whether a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, he the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. Illustration - A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1907 is due and unpaid, A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907." A mere look at the said provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on case on an existing cause of action he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) Rule 2 of Order 2, CPC is concerned, bar of which appealed to both the courts below, before the second suit of the plaintiff can be held to be barred by the same it must be shown that the second suit is based on the same cause of action on which the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press in service in that suit cannot be subsequently prayed for except with the leave of the Court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 2 Rule 2 sub-rule (3) that the second suit of the plain tiff filed in 1982 is based on the dame cause of action on which its earlier suit of 1980 was based and that because it had not prayed for any relief on the ground of passing off action and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit. So far as this plea of the defendants id concerned there is a threshold bar against them for their failure to bring on record the pleadings of the earlier suit which unfortunately has not been properly appreciated by the courts below. A Constitution Bench of this Court in the case of Gurbux Singh v. Bhooralal 1984 (7) SCR 831 speaking through Ayyangar, J. in this connection has laid down as under : " In order that a plea of a bar under 0.2 r.2(3). Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based. (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one the plaintiff, without leave obtained from the Court , omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which, the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt. a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under 0.2 r.2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in C.S.28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under 0.2.r.2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the casue of action should have been from the reference to the previous of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant, cage and pointed out, in out opinion rightly, that without the plaint in the previous suit being on the record, a plea of a bar under 0.2 r.2, Civil Procedure Code was not maintainable In view of the aforesaid authoritative pronouncement of the Constitution Bench of this Court the learned Trial Judge as well as learned Single Judge of the High Court ought to have held that the plea raised by the defendants in the present case is barred at the threshold as the defendants had not produced on the record of the Trial Court the pleadings in the firs suit. Thus there is a complete bar against the defendants from raising the bar of Order 2 Rule 2 sub-rule (3) against the plaintiff in the present case. In this connection, we may refer to one submission made by the learned counsel for the defendants which appealed to the learned Dingle Judge of the High Court. He submitted that the averments in the second suit of the plaintiff were that the first suit was misconceived and proper relief was not prayed for. Therefore, it can be inferred that the second suit was hit by the bar of Order 2 Rule 2 sub-rule (3), CPC and he further submitted that at least in counter filed in reply to the Special Leave Petition the defendants have produced the copy of the plaint in the first suit. We fail to appreciate how this effort on the part of the defendants can be of any avail to them. Firstly, the Constitution Bench of this Court in Gurbux Singh's case (supra) has clearly ruled that there cannot be any inference about the bar of Order 2 Rule 2 sub-rule (3), CPC which may be culied out from plaint in the second case and secondly once the plea of bar of Order 2 Rule 2 sub-rule (3) was not available to the defendants in the suit in the absence of the pleadings in the earlier suit being brought on the record by them in support of their case before the Trial Court they had missed the bus especially when even before the High Court, no attempt was made by the defendants to produce the pleadings in the earlier suit by way of an application foe additional evidence. Therefore, it is too late in the day foe the defendants to contend that along with counter in the Special Leave Petition before us they had produced the copy of the plaint in the earlier suit. In the light of the clear pronouncement of the Constitution Bench in the case of Gurbux Singh (supra), it must be held that it was not open to the defendants to raise the contention of the bar of Order 2 Rule 2 sub-rule (3), CPC in the present case and, therefore, the learned Single Judge of the High Court was clearly in error in non-suiting the plaintiff on that ground. However, in order to give completeness to this judgment and as the defendants were permitted to enter into the arens of contest on this ground by the Trial Court as well as by the High Court we have thought it fit to examine their contention even on merits. As seen earlier, Order 2 Rule 2 sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits the bar of Order 2 Rule 2 sub-rule (3) will not get attracted. The illustration below the said Rule amply brings out this position. A mere look at the said illustration shows that if a landlord sues the tenant in 1008 for the rent due till that year and omits to sue for rent for any of the previous years which had then accrued due he cannot subsequently sue the tenant for the previous rent due, claim for which was given up in the suit, It is obvious that a subsequent suit would not be barred in case of rent falling due after the first suit, say, for the year 1909 or 1910 etc. as that default would give him a fresh cause of action. In the facts of the present case it becomes obvious that when earlier suit was filed in 1980 the plaintiff had a cause of action regarding the alleged illegal use of his trade mark `DACK BACK' by the defendants and had also a grievance regarding the then existing deceitful action of the defendants in trying to pass of its goods `DUCK BACK'. Therefore, the cause of action foe the first suit of 1980 was based on the infringement of plaintiff's trade mark `DUCK BACK' by the defendants till the date of the suit filed in 1980. The grievance regarding passing off of the defendants' goods as if they were plaintiff's goods was also confined to the situation prevailing on the date of the earlier suit No.238 of 1980. That suit failed as the plaintiff had not claimed proper relief. Consequently for the alleged acts of infringement of plaintiff's trade mark or the alleged passing off actions on the part of the defendants till the date of the earlier suit no subsequent grievance could be ventilated by the plaintiff's by filing a fresh suit. It is also pertinent to note that in the earlier suit, that is, the first suit the plaintiff had claimed Rs.25,000/- by way of damages for the alleged illegal acts of the defendants which were brought on the anvil of action is concerned no subsequent suit lies as it would be barred under Order 2 Rule 2 sub-rule (3). But we are concerned in the plaintiff. In the second suit, namely, the present suit the grievance is not based on any acts of infringement of passing off alleged to have been committed by the defendants in 1980 but plaintiff's grievance is regarding the continuous acts of infringement of its trade mark `DUCK BACK' and the continuous passing off action on the part of the defendants subsequent to the filling of the earlier suit and which had continued on the date of the second suit of 1982. The relevant averments regarding the fresh cause of action which had accrued to the plaintiff after the disposal of the earlier first suit are found in paragraphs 13 to 20 of the plaint in the present second suit. They read as under : "13. Thereafter the plaintiff made enquiries and came to learn the following which it believes to be true : (a) That the defendants neither manufacture nor sell nor deal with goods in class 25 with the mark DUCKBACK. (b) That the Defendant No.1 manufactures and the defendant No.2 offers for sale, sells or otherwise deals with waterproof articles rubberised or otherwise in class 25 applying thereto the mark DACKBAK, a word mark. (c) That the defendants are well aware of the fact that the plaintiff's goods in class 25 have been marketed and sold for years under the plaintiff's trade mark DUCKBACK. 14. The plaintiff avers that the mark DACKBACK is phonetically, visually and in size similar to the plaintiff's said registered trade mark DUCKBACK. 15. The plaintiff avers that the defendants by their said acts have not only infringed the statutory rights of the plaintiff not only under the Trade and Merchandise Marks Act, 1958 but also under the Copy Right Act, 1957 by their wrongful use of the mark DUCKBACK, which is confusing similar to or deceptively resembling the plaintiff's said mark or design DUCKBACK, but also have invaded the common law tight of the plaintiff by passing off goods in class 25, not being those of the plaintiff's manufacture or sold by the plaintiff. 16. By the two letters dated 20.4.1982 addressed to the defendants separately, the plaintiff called upon the defendants to desist from marketing, selling or offering for sale the said goods in Class 25 with the mark DACKBACK. Xerox copy of the said two letters dated 30.4.1982 are filed herewith and marked `D' and `E'. 17. By two letters both dated 25.5.1982 from Mohammed Raftullah, acting as Advocate for both the defendants, baldly refuted the factual statements in the plaintiff's said letters dated 30.4.1982 and set up the defence of RES JUDICATA and also purported to challenge and deny the very validity of the registration of the plaintiff's trade mark DUCK BACK. The plaintiff reserves its comments on the said letters both dated 25.5.1982 are filed herewith and marked `F' and `G' respectively. 18. The Plaintiff has suffered loss which cannot be easily assessed and would suffer further loss and damage unless the defendants were restrained from further infringing the said trade mark DUCKBACK by the use of the mark DACKBACK or any other near resemblance or colourable imitation of the plaintiff's mark DUCKBACK or from passing off in any way goods in class 25 not being those of the plaintiff by the use of the mark DACKBACK or otherwise as the goods of the plaintiff. 19. The cause of action arose on or about 6.4.1982 and continues to arise DE DIE ET DIEM within the jurisdiction of this Hon'ble Court. Thus the suit is within limitation. 20. The cause of action arose at Hyderabad where the defendants are indulging in the illegal action sought to be restrained in the suit and also where the defendants reside. Thus, the Hon'ble Court has got jurisdiction." The aforesaid averments in the plaint clearly show that the present suit is not based on the some cause of action on which the earlier suit was based. The cause of action for filling this present second suit is the continuous and recurring infringement of plaintiff's trade mark by the defendants continuously till the filing of the present second suit. We asked the learned counsel for the defendants as to whether pending the suit and at present also the defendants are trading in the offending goods, namely, bearing the mark `DACK BACK' and he informed us that defendants even at present are carrying on this business. Therefore, pending the second suit all throughout and during the pendency of these proceedings the defendants have carried on the business of trading in the commodity waterproof raincoats `DACK BACK'. It is obvious that thus the alleged infringement of plaintiff's trade mark `DUCK BACK' and the alleged passing off action on the part of the defendants in selling their goods by passing off their goods as if they were plaintiff's goods has continued all throughout uninterrupted and in a recurring manner. It is obvious that such infringement of a registered trade mark carried on from time to time would give a recurring cause of action to the holder of the trade mark to make a grievance about the same and similarly such impugned passing off actions also would give a recurring cause of action to the plaintiff to make a grievance about the same and to seek appropriate relief from the court. It is now well settled that an action foe passing off is a common law remedy being an action in substance of deceit under the Law of Torts. Wherever and whenever fresh deceitful act is committed the person deceived would naturally have a fresh cause of action in his favour. Thus every time when a person passes off his goods as those of another he commits the act of such deceit. Similarly whenever and wherever a person commits breach of a registered trade mark of another he commits a recurring act of breach of infringement of such trade mark giving a recurring and fresh cause of action at each time of such infringement to the party aggrieved. It is difficult to agree how in such a case when in historical past earlier suit was disposed of as technically not maintainable in absence of proper reliers, for all times to come in future defendant of such a suit should be armed with a licence to go on committing fresh acts of infringement and passing off with impunity without being subjected to any legal action against such future acts. We posed a question to the learned counsel for the defendants as to whether after the disposal of the earlier suit if the defendants had suspended their business activities and after a few years had resumed the same and had started selling their goods under the trade mark `DACK BACK' passing them off, the plaintiff could have been prohibited and prevented by the bar of Order 2 Rule 2 sub-rule (3) from filing a fresh suit in future when such future infringement or passing off took place. He rightly and fairly stated that such a suit would not be barred. But his only grievance was that whatever was the infringement or passing off alleged against the defendants in 1980 had, according to the plaintiff, continued uninterrupted and, therefor, in substance the cause of action in both the suits was identical. It is difficult to agree. In cases of continuous causes of action or recurring causes of action bar of Order 2 Rule 2 sub-rule (3) cannot be invoked. In this connection it is profitable to have a lock at Section 22 of the Limitation Act, 1963. It lays down that `in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the beach or the tort, as the case may be, continues'. As act of passing off is an act of deceit and tort every time when such tortious act or deceit is committed by the defendant the plaintiff gets a fresh cause of action to some to the court by appropriate proceedings. Similarly infringement of a registered trade mark would also be a continuing wrong so long as infringement continues. Therefore, whether the earlier infringement has continuer or a new infringement has taken place cause of action for filing a fresh suit would obviously arise in favour of the plaintiff who is aggrieved by such fresh infringements of trade mark or fresh passing off actions alleged against the defendant. Consequently, in our view even on merits the learned Trial Judge as well as the learned Single Judge were obviously in error in taking the view that the second suit of the plaintiff in the present case was barred by Order 2 Rule 2 sub-rule (3), CPC. Once this conclusion reached the result is obvious. As the learned Single Judge of the High Court has held on merits in favour of the plaintiff and has taken the view that the action of the defendants is actionable and amounts to acts of passing off as the waterproof raincoats manufactured by the first defendant bearing the trade mark `BACK BACK' are phonetically and visually similar to those of the plaintiff hearing the trade mark `DUCK BACK', it must be held that the plaintiff had made put a case for actionable breach of infringement of plaintiff's trade mark as well as actionable act of passing off by the defendants of their goods as if they were plaintiff's goods and, therefore, the plaintiff's suit would be required to be decreed. In the result the appeal suceeds and is allowed. The judgment and order of dismissal of the plaintiff's suit as passed by the Trial Court and as confirmed by the High Court are set aside. Plaintiff's Original Suit No.123 of 1982 in the Court of Chief Judge, City Civil Court, Hyderabad is ordered to be decreed as prayed for. Appeal is accordingly allowed with costs all throughout.

Indian Copyright Act, 1957; Ss.2 (k), 13, 17 and 52: Copyright in Law Report - Publishing of copy edited version of judgments, order and proceedings of Supreme Court by appellant - Copying by respondents - Claim of copyright in the publication/published work - Held: Originality in work is a requirement of copyright - It is a right to stop others from exploiting the work of owner without his consent - There is no copyright in the facts per se - All literary works have to be original/primary work for claiming such protection - However, derivative/secondary work would qualify for claiming such protection provided skill, labour and capital involved in its creation and creativity in the end product is such as to create a new work so as to make the creator of derivative work author of it - The Courts have only to evaluate as to whether the derivative work involved substantial amount of skill labour and capital and need not to evaluate the creative aspect of the same - Law Report of Supreme Court Judgments is derivative work - Reproduction of judgments in public domain do not infringe the copyright - Innovative thoughts are necessary to establish copyright in the judgments - Copy-edited judgments would not satisfy the claim of copyright merely by establishing the amount of skill, labour and capital put in the inputs of the copy edited judgments excluding innovative thoughts for creativity - But it should be such and sufficient to import to the judgments printed, some quality which original judgment does not possess and which differentiate the original judgment from the one printed in the Report - Though appellants improved the readability of judgment of the copy-edited judgment by doing considerable labour etc. but that does not meet the minimum requirement of creativity required for claiming copyright in it - However, creation of paragraph and classification of opinion of judges would require extensive reading and careful study of the subject - It also requires considerable knowledge, sound judgment and legal skill - Hence, appellants have copyright in it - Respondents are directed not to use the paragraphs and classification of Judges' opinion as in the Report. Copyright Act - Object and scope of - Discussed. Principles: Principle of copyright - Applicability of. Supreme Court Judgments - Owner of for the purpose of copyright - Held: Government is the first owner of the copyright in the judgment. Words and Phrases: `Copyright Protection' - Meaning of in the context of Copyright Protection Act, 1957. Literary works - Classification of. `Original work' and `derivative work' - Meaning of. Appellant is the publisher of a law report publishing therein orders, practice directions, record of proceedings, short judgments and Judgments of the Supreme Court of India. After the initial procurement of the judgments, orders and proceedings for publication from the Registrar, Supreme Court of India, the appellants make copy-editing of the judgments, orders and record of proceedings procured and various inputs are put in the judgments and orders by making an addition of cross-references, formatting of the text, paragraph numbering, verification etc. to make them user friendly. The appellants also prepare the headnotes, which require considerable amount of skill, labour and expertise. And for the said work a substantial amount of capital expenditure on infrastructure, such as office equipments, computers and for maintaining extensive library, besides recurring expenditure on both the management of human resources and infrastructural maintenance has been made by the appellants. Appellants alleged that the Law Report, so prepared, constitutes an `original literary work' in which copyright subsists in terms of Section 13 of the Copyright Act, 1957 and thus the appellants alone have the exclusive right to make printed as well as electronic copies of the same under Section 14 of the Act. Any scanning or copying or reproduction done of or from the Reports or pages or paragraphs or portions of any volume of the Report by any other person, is an infringement of the copyright in the Report within the meaning of Section 51 of the Act. Appellants further alleged that respondent No. 2, another publisher, has brought out a software called "Grand Jurix" published on CD-ROMs and the other respondent, also a publisher, has brought out software package called "The Laws" published on CD-ROMs; and that all the modules in the respondents' software packages have already been lifted verbatim from their work; copied the sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments as published in the Law Report, along with and including the style and formatting, the copy-editing paragraph numbers, footnote numbers, cross-references, etc.; and such acts of the defendant-respondents constitute infringement of the appellants' exclusive right to the same. The appellants moved the High Court for issuance of temporary injunction by filing applications in the Suit against the respondents. Single Judge of the High Court dismissed the applications for interim injunction. However, before the Single Judge, the respondents conceded that the appellants have copyright in the headnotes and as such they undertook not to copy these headnotes in their CD-ROMs. Aggrieved by the order of the Single Judge of the High Court refusing to grant interim injunction, the appellants preferred appeals before a Division Bench of the Delhi High Court and the applications praying for interim relief were also filed in both the appeals. The applications praying for the interim relief were disposed of by the Division Bench of the High Court directing that during pendency of the appeals the respondents would be entitled to sell their CD-ROMs with the text of the judgment of the Supreme Court along with their own headnotes which should not in any way be a copy of the headnotes and the text of the plaintiff-appellants. Disposing of the matter, the Division Bench of the Delhi High Court held that the appellants were not the author of the Supreme Court judgments and by merely making certain corrections therein or giving paragraph numbers, the character of a judgment does not change and it does not become materially different from the original judgment; that once a person has a right to obtain certified copy of the judgment from the Registry of the Court and to publish it, it cannot be said that others have no right to take text of the judgment from the journal where it is already reported; that the act of reproduction of any judgment or order of the Court, Tribunal or any other judicial authority under Section 52(1)(q) of the Copy Right Act, is not an infringement of the copyright. Any person can, therefore, publish judgments of the Courts, however, there would be copyright in the headnotes to the judgments prepared by the appellants. So far as footnotes and editorial notes are concerned, it cannot be denied that these are the publisher's own creations and based on publisher's own research and, thus, will have a copyright of the appellants. Hence, the Division Bench modified the judgment of the Single Judge by allowing the respondents to sell their CD-ROMs with the text of the judgments of the Supreme Court along with their own headnotes, editorial notes, if any, which should not in any way be copy of the headnotes of the appellants. Thus, the High Court has not accepted the case of the appellants that they have a copyright in the copy-edited judgments of the Supreme Court. Hence the present appeals and the Contempt Petition. In the present case, the questions which require determination by the Court were as to what shall be the standard of originality in the copy-edited judgments of the Supreme Court which is a derivative work and what would be required in a derivative work to treat it the original work of an author and thereby giving a protected right under the Copyright Act, 1957 to the author of the derivative work and as to whether the appellants would be entitled for a copyright as an original literary work in the entire version of the copy-edited text of the judgments published in the appellants' law report or as to whether the appellants would be entitled to the copyright in some of the inputs which have been put in the raw text. Appellants contended that the copyright subsists as a law report in their publication `SCC' as a whole based cumulatively and compendiously on all the substantial contributions of skill, labour and capital in the creation of various parts of the Report; that the copyright subsists in the copy-edited version; that they do not claim copyright in the raw text of the judgments, certified copies of which are being obtained from the Registry; that they do not claim a monopoly in publishing judgments of the Supreme Court as they are being published by other publishers also without copying from each other publication; that their copyright is in the copy-edited version of the text of judgments as published in SCC which is a creation of their skill, labour and capital and there are contributions/inputs/ additions in creating the version of the text of judgments as published in the report; that Section 52(1)(q)(iv) of the Act does not bar the recognization of copyright in the copy-edited version of the text of judgments of the courts as published in law reports; that the Government is the first owner of copyright in the judgments of the courts as per Section 2(k) read with Section 17 and Section 52(1)(q)(iv) of the Act provides that any person wanting to reproduce or publish judgments would not infringe the copyright of the Government, but Section 52(1)(q)(iv) does not imply that in case a person has expended independent skill, labour and capital on the judgments of the courts to create and publish his version of the judgments, any other person is free to copy that person's version of the judgments, substantially or in its entirely; that Copyright subsists in the copy-edited version of the text of judgments of the courts as published in law reports, which have been created by the application of skill, labour and capital which is not trivial or negligible; that the inputs put in the copy-edited judgments in SCC, is a derivative literary work created from pre-existing material of the judgments of the court which is in public domain; that the exercise of independent skill, labour and capital in its creation by the author of such work, and the derivative literary work so created is by their independent skill, labour and capital, which gives them copyright in such creations; that it is not necessary that work created should have a literary merit; that the courts can only evaluate whether the skill, labour and capital actually employed, required in creating the work, is not trivial or negligible; that in deciding whether a derivative work qualifies for copyright protection, it must be considered as a whole, and it is not correct to dissect the work into fragments and consider the copyrightability of each such fragment piecemeal and individually apart from the whole; and that the respondents if wish to reproduce or publish a work already in public domain was obliged to go to the public domain/common source of such work rather than misappropriating the effort and investment of the appellants by copying the version of such work which was created by them by their independent expenditure of skill, labour and capital. Respondent submitted that the judgment of the court is a Government work as defined under Section 2(k)(iii) of the Act; that on account of Section 17 (d) of the Act, the Government in the absence of any agreement to the contrary be the first owner of the copyright therein; that in terms of Section 52(1)(q)(iv) of the Act, publication of the judgments of the apex court by the respondents would not tantamount to infringement of the copyright of the appellants; that the judgments published in the Supreme Court Cases is nothing but merely a derivative work based upon the judgments of the court, which lacks originality as it does not depict independent creation even a modicum of creativity; that the inputs put by the appellants is nothing but expressing an idea which can be expressed in a limited way and as such there cannot be a copyright in it; that filling the blanks or gaps by providing names of the parties or citations of the judgments, both of which are well known and unchangeable parts of that idea, are not original work to warrant copyright protection, either singly or in combination; and that the additions made in the reported judgment by the editors of the Report are only the well known extensions of the reported decision. These extensions lack even the minimal degree of author's creativity or originality or intellectual labour nor does it create additional knowledge, the protection of which is the very basis of the copyright protection. Respondents in the connected Civil Appeal submitted that there is a distinction between a `law report' as understood in England and a `law journal' as printed in India; that the appellants' journal `SCC' is not a law report in the strict sense, inasmuch as it reproduces the judgments of the court verbatim along with inputs. However, a law report known in the traditional English sense is when a law reporter present in the court would record in his own words and language the arguments of the counsel on both sides, give a summary of the facts and incorporate into the said report his transcript of the speech of the Judge. Thus, the appellants' work could only be a law journal and not a law report; that the judgments were specifically made a part of the exception to copyright infringement and thus find place in Section 52(1)(q) of the Act; that for claiming protection of copyright in a derivative work, under the Indian law originality is a pre-condition and originality means only that the work was independently created by the author as opposed to copied from other works, and that it possesses at least some minimal degree of creativity; that reporting of the judgments of the Supreme Court with certain inputs could only be said to be a discovery of facts already in existence; that to create a copyright by alterations of the text, these must be extensive and substantial practically making a new version; that the copy-editing inputs of the appellants are only discoveries/facts and there are limited ways/unique of expressing the various copy- editing inputs and thus no copyright can subsist in such limited/unique expressions; that the facts which are discovered could be expressed in limited ways and as such ways adopted cannot give copyright protection to the inputs or the judgments as a whole; that recognizing the copyright in the copy-edited version of the law reports would amount to giving the appellants a monopoly in the judgments of the courts which is against the intendment of Section 52(1)(q)(iv) and would defeat the purpose of putting judgments in the public domain; that for a derivative work, the originality test as applied in United States Supreme Court should be made applicable whereby the author of a derivative work would satisfy that the work has been produced from his exercise of skill and judgment; and that the exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized a purely mechanical exercise. The work should be independently created by the author as opposed to copied from the other works and that it possesses at least some minimal degree of creativity.

2008 AIR 809 , 2007(13 )SCR182 , 2008(1 )SCC1 , 2007(14 )SCALE191 , THE HONOURABLE SRI JUSTICE P.S.NARAYANA C.R.P. NO.2801 OF 2006 11-06-2007 Kesari Goutham Reddy Velpula John Victor Macaulay Respondent/Appellant. 2.Yellampalli Sobhadevi Counsel for the Petitioner : Sri Prabhakar Peri Counsel for the Respondent : Sri S.Srinivas Reddy :ORDER: Heard Sri Prabhakar Peri, the learned counsel representing the revision petitioner-proposed party and Sri S.Srinivas Reddy, the learned counsel representing the first respondent. 2. The CRP is filed as against the order, dated 28.04.2006, made in I.A.No.221 of 2004 in A.S.No.30 of 2001 on the file of IV Additional District Judge, Nellore. The application was filed under Order 1, Rule 10 of the Civil Procedure Code (hereinafter referred to as 'the Code' for the purpose of convenience) for impleading the petitioner-proposed party as one of the respondents in A.S.No.30 of 2001. The learned Judge recorded certain reasons and, ultimately, dismissed the said application. Aggrieved by the same, the present CRP is preferred. 3. This court, on 22.06.2006, granted stay of pronouncement of judgment in the said appeal and adjourned the matter to 13.07.2006 and the interim order was extended and the counsel for petitioner is permitted to take out notice and file proof of service. Thus, the matter is coming for admission and at the request of both the counsel on record, the CRP is being disposed of finally. 4. Sri Prabhakar Peri, the learned counsel representing the petitioner-proposed party would submit that it is an unfortunate case where the proposed party purchased the property under a registered sale deed dated 05.06.1998. The counsel also would submit that the respondent in the appeal who had been successful in the suit is not interested in contesting the appeal and, as a purchaser pendente lite, the petitioner with a view to safeguard his interest filed the present application. The learned counsel also would submit that though the petitioner filed O.S.No.807 of 2002 on the file of III Additional Junior Civil Judge, Nellore, the pendency of the said suit not come in the way in deciding this application, since any adverse judgment which may be made in this appeal may affect the petitioner-proposed party in any other pending suit as a whole. The counsel placed a strong reliance on RAJ KUMAR v SARDARI LAL AND OTHERS1 and AMIT KUMAR SHAW AND ANOTHER v FARIDA KHATOON AND ANOTHER2. 5. Per contra, Sri Srinivas Reddy, the learned counsel representing the first respondent had taken this Court through the reasons which had been recorded. The counsel also would submit that the property, which is being claimed by the petitioner, and the subject matter of O.S.No.108 of 1992, appear to be different plots. The learned counsel also would submit that already a suit O.S.No.807 of 2002 on the file of the III Additional Junior Civil Judge, Nellore had been instituted and, hence, there is no need to allow the said application while permitting the petitioner-proposed party to come on record in A.S.No.30 of 2001. 6. Heard both the counsel. 7. It is the case of the revision petitioner that he purchased an extent of 100 ankanams of vacant site bearing plot No.3 comprised in S.C.No.347 of 2001 of Kondayapalem, Nellore town within the limits of Nellore Municipality by virtue of a registered sale deed dated 05.06.1998 for a consideration of Rs.1,08,000/- from the respondent in A.S.No.30 of 2001 and, thus, he has been in possession and enjoyment of the same with absolute rights. It is also stated that on 31.7.2002, there was an attempt to encroach upon his site and since he was unable to resist the highhanded acts of the first respondent, who is the appellant in A.S.No.30 of 2001, he had filed O.S.No.807 of 2002 on the file of III Additional Junior Civil Judge, Nellore against him for perpetual injunction and obtained interim injunction orders in I.A.No.864 of 2002 in the said suit. It is also stated that recently it came to his knowledge that there is collusion between the appellant-respondent in A.S.No.30 of 2001 and they are trying to create certain documents to defeat his rights relating to plot No.3. 8. The appellant in the appeal, the first respondent in the application, resisted the same denying the allegations. It is stated that the first respondent is the absolute owner of 100 ankanams in plot No.2 the suit schedule property in O.S.No.108 of 1992 and it was purchased by him through a registered sale deed dated 16.07.1990 from M.Sugunamma and after purchase of the property on physical verification of the property at the spot, there appears to be some changes as to the boundaries. As such, a rectification deed, dated 10.2.1992, was executed by Ch.Raja Babu, G.P.A. of M.Sugunamma. It is also stated that the first respondent started construction of the house in his site and he began to construct the compound wall. At this stage, the second respondent tried to encroach upon the site belonging to first respondent, as such the first respondent i.e the appellant in A.S.No.30 of 2001 was constrained to file O.S.No.108 of 1992 on the file of III Additional Junior Civil Judge, Nellore and after trial, the suit was dismissed. It is also stated that the proposed party has got knowledge of the filing of O.S.No.108 of 1992 and he was supporting the defendant in the suit, the respondent in A.S.No.30 of 2001. The alleged sale deed is only sham and nominal document and several other factual details also had been narrated. 9. The learned Judge recorded reasons at paras 6 and 7 and, especially, in the light of the pendency of O.S.No.807 of 2002 relating to the same subject matter and also on the ground that there appears to be some doubt relating to the subject matter of these litigations, the application was dismissed. It is needless to say that in the light of the respective stands taken by the parties, whether the subject matter of these suits overlap, whether the identity is one of the same and whether these are different plots, these aspects may have to be further gone into at the appropriate stage. The main contention of the revision petitioner is that his vendor, the defendant, who was successful in the suit, is not interested in contesting the appeal and there appears to be some collusion between these two parties to defeat his right. No doubt, the appellant in the appeal is taking a stand that the document in question is a sham and nominal document. This Court is not inclined to express any opinion relating to these details. Be that as it may, as a purchaser pendente lite, the proposed party filed the application to come on record to safeguard his interest. It may be that an other suit already might have been instituted by him as against the appellant in this appeal praying for the relief of perpetual injunction. 10. In the decision one supra, the Apex Court observed thus ; A lis pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant. The same principle of law is recognized in a different perspective by Rule 16 of Order 21 CPC which speaks of transfer or assignment inter vivos or by operation of law made by the plaintiff decree-holder. The transferee may apply for execution of the decree of the court which passed it and the decree will be available for execution in the same manner and subject to the same conditions as if the application were made by the decree-holder. It is interesting to note that a provision like Section 146 CPC was not to be found in the preceding Code and was for the first time incorporated in CPC of 1908. In Order 21 Rule 16 also an explanation was inserted through amendment made by Act 104 of 1976 w.e.f.1.2.1977, whereby the operation of Section 146 CPC was allowed to prevail independent of Order 21 Rule 16 CPC. A decree passed against the defendant is available for execution against the transferee or assignee of the defendant judgment-debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the court. The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi v Nirmala Sundari Dassi3 is apt for resolving the issue arising for decision herein. A transferee of property from the defendant during the pendency of the suit sought himself tobe brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22 Rule 10 CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22 Rule 10. In an appeal preferred by such transferee, this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22 Rule 10 CPC. However, the Court held that an appeal by is a proceeding for the purpose of Section 146 and further, the expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights." 11. In the decision second supra, the Apex Court observed thus: "The object of order 1Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases: 1. When he ought to have been joined as plaintiff or defendant, and is not joined so, or 2. When, without his presence, the questions in the suit cannot be completely decided. The power of a court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right. The application under Order 22 Rule 10 can be made to the appellate court even though the devolution of interest occurred when the case was pending in the trial Court. In the instant cases, the suit was decreed in favour of Fakir Mohammad by judgment and decree dated 3.11.1989. The suit was contested by two sets of defendants, one set of defendants was Birendra Nath Dey and Kalyani Dey and the other set of defendants was Jagat Mohan Das alone. The appeals were preferred by the parties. Both the appeals were heard and by a common judgment and order dated 25.6.1992, the said appeals were allowed and the judgment and decree passed by the Munsif was set aside. By a deed of assignment dated 15.12.1995, the said Birendra Nath Dey assigned his lease hold right in respect of 132-A, Circular Garden Reach Road, presently known as 132-A, Karl Marx Sarani, Kolkata in favour of the appellants. By a deed of sale executed on 15.12.1995, duly registered with the Additional Registrar of Assurances, Calcutta, Kalyani Dey sold the property being No.132-B of the above address to the other appellant. The second appeals filed by the parties were pending on the file of the High Court at Calcutta. The appellants had no knowledge of the second appeals. Thereafter on verification, the appellants came to know of the pendency of the appeals which necessitated them to file the applications for substitution in the second appeals. In the meanwhile, the appellants filed the applications before the municipal authorities for the mutation of their names in respect of the property on 24.12.2002 and the municipal authority informed the appellants that they were not in a position to mutate the names of the appellants of the property in question because of the pendency of the two second appeals before the High Court at Calcutta. Thereafter the appellants engaged an advocate to find out whether any such appeals have been filed by the parties. The advocate so engaged informed the appellants that two appeals being SAs Nos.631 and 632 of 1993 were filed by Fakir Mohammad, Farida Khatoon and others, respondents herein. It was also informed that the said appeals were admitted by the High Court but the impugned judgment and other order was neither prayed for stay nor stayed. Therefore, it was also submitted by the appellants that since the appellants have become the absolute owners of the property, their interest will be highly prejudiced and they will be vitally affected, if any order is passed by High Court without hearing the appellants in the matter. Therefore, they prayed that the appellants are to be substituted in place and stead of the present respondents, since they have no existing and subsisting right, title or interest in the property. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit. In this connection, the provisions of Section 52 of the Transfer of Property Act, 1882 which has been extracted above may be noted. An alienee pendentelite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed." 12. In the light of Section 146 of the Code read along with Order 1, Rule 10 also Order 22, Rule 10 of the Code, this Court is of the considered view that in a matter of this nature, where a purchaser pendente lite intends to come on record to safeguard his interest in a pending litigation, it would not be just and proper to dismiss such application. 13. In the light of the same, the impugned order is hereby set aside. Accordingly, the CRP is hereby allowed. No order as to costs. ?1 (2004)2 SCC 601 2 (2005) 11 SCC 403 3 AIR 1958 Supreme Court 394 SCR 1287