E M FORSTER Vs. A N PARASURAM

JUDGEMENT

(1.) IN 1924, Mr. E. M. Forster, the English Novelist, published "a Passage to India", a work of fiction which was also a penetrating study of the Indo-Anglian social climate; the work since became famous, and has recently been dramatised. Certain exclusive rights of publication in this work were assigned by Mr. Forster to edward Arnold (Publishers) Ltd. , by an indenture of Agreement in March 1924. In 1955-56, "the University of Madras prescribed "ft Passage to India", as a text book for the students taking the B. A. degree. Mr. A. N. Parasuram (respondent)published a guide-book for students to the novel "a passage to India" in or about december 1954. Two actions were instituted in the Original Civil Jurisdiction of this court, respectively by Mr. A. N. Parasuraman, respondent, on the one hand, and mr. E. M. Forster and Messrs. Edward Arnold (Publishers) Ltd. on the other, both relating to the alleged infringement of the copyright in the original work by the publication of the guide-book. They were tried together by Ganpatia Pillai J. and dealt with by moans of a common judgment, the learned judge held that there was no such infringement by substantial reproduction of the original novel and that the guide-book of Mr. Parasuram amounted to an "independent literary effort on his part". The suits were disposed of in the light of these and other findings, and (the present appeal is by Mr. Forster and Messrs. Edward Arnold (Publishers)Ltd. , the plaintiffs in C. Section 15 of 1957, which was dismissed. The sole question that concerns us in the appeal is the alleged infringement of copyright in the original litatrary work of Mr. Forster; there were ancillary questions that arose for determination, but they do not now concern us.

(2.) THERE is a very extensive case-law available upon the subject, and we have also been referred to passages from the following works, namely, 8 Halsbury (Simonds edn.) page 372 et seq; Copinger (9th Edn.); Russell-Clarke on Copyright and industrial Design, 1951 Edn. and Corpus Juris Secondum, Vol. 18. In this context itself, it may be convenient to notice that several of the leading authorities were also reviewed by Rajagopala Aiyangar J. in Blackwood and Sons Ltd. v. Parasuraman, Before proceeding to any discussion of the principles, as could be gleaned from the case law and standard treatises, we think, however, that it is of some importance first to set down the relevant part of the copyright Act III of 1914, which admittedly governs the rights of parties, though subsequently repealed by Act XIV of 1957. Section 1 (2) of the Act runs as follows:

(3.) WE have set forth this part of the statute verbatim above, for an important reason. It will at once be obvious that where a person has copyright in a literary work, and any other person produces or reproduces the work, or any substantial part thereof, in any material form, he is committing an infringement of copyright. That is the intrinsic or essential test, and, if that test is not fulfilled, the cause of action does not lie. But there may be some other contingency, such as the conversion of a drama, which is an original literary work, into a novel or non-dramatic work, similarly, the original literary work might be a novel, and it might be converted into a drama which could be performed in public, in those instances, other tests might also be applicable. If the infringement is prima facie established, the party sued can rely upon any of the exceptions enacted in Section 2 (1) of the act, which will include "fair dealing" as specified' in Section 2 (l) (i ). In this context, it may also be of some significance to note the interpretative definitions in Section 35 (1) of Act III of 1914; "infringing" is interpreted as "any copy, including any colourable imitation, made or imported in contravention of the provisions of this Act. " The rationale of this statute was thus expressed by Lord atkinson in Macmillan and Co. Ltd. , v. K. and J. Cooper, 46 Mad LJ 637 : ILR 48 bom 308 : (AIR 1924 PC 75)