ABBAS HUSAIN FAROOQUI Versus MESSRS ROYAL PRINTING PRESS AND ALI PRINTING SERVICE, KARACHI

MUHAMMAD HAYAT JUNEJO, J.‑ ---This judgment shall dispose of two connected appeals which arise from the judgment dated 8th December 1962 of Mr. Hamza Khan Kureshi, Additional District Judge, Karachi, in Suit No. 1547 of 1958. Appeal No. 72 of 1963 has been preferred by Mr. Abbas Hussain Farooqi (hereinafter referred to as the plaintiff); while the other appeal, being First Appeal No. 41 of 1963, has been filed by Mr. Zikrur Rehman, who was the main contesting defendant in this suit and shall hereinafter be referred to as defendant No. 3. Similarly, the other respondents in appeal filed by Mr. Farooqi, who were also defendants in the suit, namely, Messrs Royal Printing Press. Abid Ali, Iqbal Printing Press Ltd., Messrs Karachi Commerce Printers, Ahmed Hussain and S. F. Huda shall be referred to as defendants Nos. 1, 2, 4, 5, 6 and 7 respec tively.

2. The plaintiff's case as alleged in the plaint, Exh. 1, was that he had in association with Messrs Pakistan Herald Ltd. published a diary for the year 1955 under the name and style of "Herald Desk Diary" containing amongst other things, notes on and extracts and selections from several Acts and Ordinances. On 18th October 1955, the defendant No. 1 through the defendant No. 2 agreed and undertook to print for the plaintiff 2,000 copies of the said Diary for the year 1956 under the name and style of "R. L. R. Desk Diary, 1956" and also to print in gold leaf equal number of covers for the said 2000 copies and to deliver the same to the plaintiff by the 1st of November 1955 for the amount of Rs. 600. On the same day defendant No. 2 introduced defendant No. 3 to the plaintiff who entrusted the former with the responsibility of binding the proposed 2,000 copies of the said diary. It was alleged that in pursuance of the aforesaid agreement the plaintiff entrusted to defendant No. 1 through defendant No. 2, two copies of the said "Herald Diary" along with the other material including a calender for the year 1956 to be printed on every date page. 112 reams of paper and Rs. 300 in cash were also given by way of advance for the same purpose. Thereafter various sums of money were advanced for this purpose. It was alleged that the defendants Nos. 1 and 2 delivered 1850 copies of the diary to the plaintiff who found that they were very badly typed and printed. The plaintiff was further surprised to find on 8th December 1956, that a very large number of copies of his Diary for the year 1956 were on sale throughout Karachi market under the name and style of "Lotus Table Diary", which was published by defendant No. 3 in infringement of the plaintiff's copyright. The plaintiff filed a criminal case which was later dismissed for default. Thereafter on 8th October 1958, he filed the suit which is the subject‑matter of this appeal wherein he prayed inter alia for the recovery of Rs. 10,000.00 on account of damages; and for declaration that in all that was published in the "R. L. R. Desk Diary 1956" and the "Lotus Table Diary" 1956 the plaintiff had the sole copy right to the exclusion of all others and the defendants had infringed the said copyright of the plaintiff by publishing the Lotus Diaries 1956, 1957 and 1958. The plaintiff further prayed for a permanent injunction restraining all the defendants from publishing, printing or selling the said diaries and for compelling the defendants to submit their account books or in default to pay to the plaintiff Rs. 4‑8‑0 per copy to be calculated at 10,000 copies for each of the years, 1956, 1957 and 1958.

3. Written statements were filed by defendants Nos.‑ 1 to 7. Defendant No. 3 who was the only contesting party denied the allegations in the plaint. He, however, admitted that he had sold about 600 copies of his Lotus Table Diary for the year 1956 out of about 1000 diaries that defendant No. 1 printed for this defendant. He further stated that the subject‑matter was provided by defendant No. 1 and only the paper was supplied by defendant No. 3. Defendant No. 3 denied that he had committed any breach of trust or any infringement of the plaintiff's copy right which according to him did not exist as the work was not original but was only copied from other diaries which were on sale in the market.

4. On the pleadings of the parties, the learned trial Judge framed the following issues:‑

(1) Are the statements made by the plaintiff in paras. 1 to 7 of the plaint correct? If so to what effect?

(2‑A) Has the plaintiff any copyright in his diaries?

(2‑B) If so, has that copyright been infringed by defendants or any of them as alleged?

(3) Is the suit of the plaintiff barred by time?

(4) Is the suit bad for non‑joinder of parties?

(5) Is the suit not maintainable against defendants Nos. 4 to 11?

(6) Are the defendants or any one or more of them entitled to costs under section 35‑A, C. P. C.?

(7) To what relief, if any, is the plaintiff entitled and against whom?"

5. The learned Additional District Judge held that the suit was not maintainable against defendants Nos. 4 to 11; and that none of the defendants was entitled to costs under section 35(a), C. P. C. On all other issues his findings were in favour of the plaintiff. The learned Additional District Judge, accordingly decreed the plaintiff's suit against defendants Nos. 1, 2 and 3 and held that they were individually and jointly liable to pay damages of Rs.10,000.00 to the plaintiff for breach of contract and obtaining, benefit from the original work of the plaintiff by printing and publishing his copyright matter under the name and style of "Lotus Table Diary". The prayers for accounts and permanent injunction were, however, refused on the ground that the plaintiff bad been compensated by damages and he could file separate suits for further infringements of his copyright.

6. It is not necessary for us to discuss all the issues framed by the trial Court as the only points which have been agitated before us and which are necessary for the purpose of deciding these appeals are:

(i) Whether the plaintiff has copyright in his diaries, namely, Herald 1955 and/or Lotus Desk Diary 1956 and if so,

(ii) Whether the copyright had been infringed by the defendants?

7. The First Schedule of the Copyright Act, 1914 contains the provisions of the Imperial Copyright Act, 1911 (hereinafter referred to as the Act) which was applicable to Pakistan before the Copyright Ordinance, 1962 came into force.

Under section 1 of the Act Copyright subsists in every original literary, dramatic, musical and artistic work. Section 35 of the Act provides that "literary work" includes, maps, charts, A plans, tables and compilation unless the text require otherwise. What would constitute "literary work" within the meaning of the Act has been exhaustively dealt with in University of London Press, Limited v University Tutorial Press Limited ((1916) 2 Ch. 601). Peterson, J. while holding that examination papers constituted "literary work" observed as follows:

"Although a literary work is not defined in the Act, section 35 states what the phrase includes; the definition is not a completely comprehensive one, but the section is intended to show what, amongst other things, is included in the description 'literary work,' and the words are 'literary work' includes maps, charts, plans, tables and compilations.' It may be difficult to define 'literary work' as used in this Act, but it seems to be plain that it is not confined to 'literary work' in the sense in which that phrase is applied, for instance, no Meredith's novels and the writings of Robert Louis Stevenson. In speaking of such writings as literary works, one thinks of the quality, the style and the literary finish which they exhibit. Under the Act of 1942, which protected 'books', many things which had no pretensions to literary style acquired copyright; for example, a list of registered bills of sale, a list of foxhounds and hunting days, and trade catalogues; and I see no ground for coming to the conclusion that the present Act was intended to curtail the rights of authors. In my view the words 'literary work' cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word 'literary' seems to be used in a sense somewhat similar to the use of the word 'literature' in political or electioneering literature and refers to written or printed matter. Papers set by examiners are, in my opinion 'literary work' within the meaning of the present Act."

This decision has since been consistently followed and the learned counsel for appellant Zikur Rehman in Appeal No. 41 of 1963 does not dispute the correctness thereof. Mr. S. M. Sadiq, has, however, strenuously contended that the plaintiff's diary although a "literary work" within the meaning of the Act could not be the subject‑matter of copyright, as there was nothing novel or original about it. According to Mr. Sadiq, the contents of the plaintiff's compilation are such as are usually to be found in most of the diaries on sale in the market: and such diaries cannot be the subject‑matter of copyright. The learned counsel relied on G. A. Gramp & Sons Ltd. v. Frank Smythson Ltd. ((1944) 2 All E R 92). That was a case in which the plaintiffs were the publishers of a series of pocket diaries. The defendants published diaries of a similar character, one of which, namely, the Surrey Lightweight Diary for 1942 contained 7 printed tables which were identical with 7 corresponding tables in the plaintiffs' Liteblue Diary for 1933, with the necessary calander alterations and a few variations. The defendants copied the seven tables in question from those contained in the plaintiffs' diary. The collection of the tables comprised in the plaintiffs' diary consisted of tables under the heading of "days and dates", "Inland Postal Rates," "Empire and Foreign Postage", "Equivalents of Metric and Imperial Weights and Measures", "Empire and Foreign Time Table", "Sunset Table" and "Percentage Table". The plaintiffs contended that they were entitled to copyright in respect of the words, type and layout in the body of the diary as well as in the tables of information given therein. It was on these facts held by the House of Lords, reversing the decision of the Court of Appeal in Smylhson v. Gramp & Sons ((1943) 1 All E R 322), that the selection of the infor mation reprinted in the diary did not constitute an original literary work sufficient to entitle the plaintiffs to copyright under section 1(l) of the Copyright Act, 1911.

We may observe that this case cannot be held to bean authority for the proposition that a compilation such as a diary can never be the subject‑matter of copyright. On the contrary, it has been repeatedly emphasised therein that each case has to depend on its own facts and relevant consideration would always be the degree of skill, knowledge, labour and judgment employed in the collection of extracts etc Viscount Simon, L. C. made this position clear in the following words----

No body disputes that the existence of sufficient 'originality' is a question of fact and degree. Lord Atkinson's observation in delivering the judgment of the Judicial Committee in Macmillan & Co. v. Cooper 1923 L R 51 I A 109 lays down the law on the subject in terms which are universally accepted.

It may be useful to reproduce the following passage from the opinion of Lord Macmillan:‑

I do not doubt that, as the annals of literature show a high degree of skill and knowledge may be displayed and much labour and judgment expended in gathering from the wide fields of non‑copyright material at the disposal of the public specialized collections of extracts designed to meet particular needs or particular tastes. But it must always be a question of degree. Not every compilation can claim to be original literary work even in the pedestrian sense attributed to these words by the law. Thus, to take a familiar example, it has been held by this house that to compile from the official time‑tables of the railway companies a local time‑table showing a selection of trains to and from a particular town is not to compose a work entitled to copyright. Such a compil ation may be convenient and useful for the inhabitants of that town but doe3 not require either such labour or such ingenuity in its preparation as to render it fit subject‑matter for copy right.

As I have said, and as the authorities remind us, the question must always be one of degree and on questions of degree different minds may naturally reach different conclusions.

Lord Porter summarised the position thus:‑

It is not denied that compilations are susceptible of copy right even though the matter compiled of itself contains nothing new. Macmillan v. Suresh Chunder Deb I L R 17 Cal. 951 which was approved by the Privy Council in Macmillan & Co. Cooper 1923 L R 51 1 A 109, is sufficient authority for this proposition. Nor does it matter, if a substantial portion of the compilation be taken, that the copier added fresh matter of his own or took only a part of the original compilation. On the other hand, as was conceded, no copyright exists merely by reason of the order in which the various items are placed. It is their selection, not their position inter se, which is alleged to constitute copyright.

Bearing these considerations in mind, the question to be answered is: Have the appellants succeeded in showing that the almanac in question is not susceptible of copyright? I think they have. It is conceded that, if the work, labour and skill required to make the selection and to compile the tables which form its items are negligible, then no copyright can subsist in it. Whether enough work, labour and skill is involved, and what its value is, must always be a question of degree. Different minds will differ, as may be seen in the present case from the divergence of opinion in the Courts below

These observations would show that this authority does not support the general proposition canvassed by Mr. Sadiq that there could be no copyright in a diary. Moreover, this case has been distinguished by the House of Lords in later case reported as Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. ((1964) 1 All E R 465). The respondents in that case who were well‑known book makers, had sent their customers each week fixed odds football betting coupons arranged in a certain general form. The appellant who were also bookmakers started to send out coupons closely resembling the respondents'. A coupon was a sheet of paper on which were printed several lists of forthcoming matches. Besides each list were columns of squares on which the punter could indicate his forecast of the result of each match. Some of the lists included all the matches to be played; others included only a selection of them. The bets varied in character. In some the punter forecast a certain number of draws or the winners of a certain number of teams playing "at home" or "away". A great variety of bets was offered and the odds offered differed widely from 5‑2 to 2,000‑1. The respondents' coupon contained 16 lists, each with an appropriate name. The appellants' coupon, which contained 15 lists, closely, resembled the respondents'. The lists offered by the appellants were almost identical with those offered by the respondents in their corresponding lists. For some lists the appellants devised new headings and they worked out for themselves the different odds offered in respect of various kinds of bets which, accordingly, they did not copy. The matches, which altered every week, were not copied either. What the appellants adopted from the respondents were the types of wagers and to a large extent the arrangement and the headings. It was on these facts held by the House of Lords, distinguishing their earlier opinion expressed in G. A. Gramp & Sons Ltd. v. Frank Smythson Ltd. ((1944) 2 All E R 92), that there had been a branch of copyright by the appellants, since the respondents' compilation, which must be regarded as a single work, was `original' and protected by copy right and the part taken by the appellants was substantial. According to their Lordships, merely because the fragments of the compilation were not entitled to copyright, it would not be correct to adduce that the whole compilation could not be so entitled.

In Mack v. Petter ((1872) 14 E C 431), the plaintiff, who was the publisher of a work which he claimed to have originated called "The Birthday Scripture Text Book," consisting of a printed diary interleaved, with a blank space opposite each day with a text of Scripture appended, and which was designed as a record of the birthdays of friends, was held to be entitled to an injunction to restrain the defendants from publishing and selling a work subsequent to the plaintiffs, called "The Children's Birth Text Book," on the ground that it was an infringement of the plaintiff s copyright in the title of his work, as well as a colourable imitation of the same.

8. The question as to what is meant by "original" within the meaning of the Copyright Act has been exhaustively considered in the case of University of London Press, Limited v. University Tutorial Press, Limited cited above; and it may be useful to reproduce the following observations appearing therein at pages 608 to 609:

The word `original' does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of `literary work,' with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that work must not be copied from another work‑that it should originate from the author.

This passage was cited by their Lordships of the Privy Council in Macmillan & Company Limited v. K. & J. Cooper (A I R 1924 P C 75), with the observation that this was the correct construction of the words of section 1, subsection (1) of the Copyright Act. Relying on the observations of Lord Halsbury in Walter v. Lane (1900 A C 539), their Lordships went on to observe as follows:

It will be observed that it is the product of the Labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if one may use the expression, upon which the labour and skill and capital of the first have been expended. To secure copyright for this product it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material. This distinction is well brought out in the judgment of that profound and accomplished Lawyer and great and dis tinguished Judge, Mr. Justice Story in the case of Frederick Emerson v. Chas. Davies (Storey's United States Reports, Vol 3, p. 768), some of the points decided are stated in the head note to be first that any new and original plan, arrangement or compilation of material will entitle the author to copyright therein whether the materials themselves be old or new. Second, that whosoever by his own skill, labour and judgment writes a new work may have a copyright therein, unless it be directly copied or evasively imitated from another's work. Third that to constitute piracy of a copyright it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright.

Describing the decision in Frederick Emerson v. Chas Daries as "sound, able, convincing and helpful", their Lordships quoted with approval the following passage thereof

"The book of the plaintiff is, in my judgment, now and original in the sense in which those words are to be understood in cases of copyright. The question is not whether the materials which are used are entirely new and have never been used before, or even that they have never been used before for the same purpose. The true question is whether the same plan, arrangements and combination of materials have been used before for the same purpose or for any other purpose. If they have not, then the plaintiff is entitled to a copyright, although he may have gathered hints for his plan and arrangement or parts of his plan and arrangement from existing and known sources. He may have borrowed such of his materials from others but if they are combined in a different manner from what was in use before . . . . . he is entitled to a copyright . . . . . It is true that he does not thereby acquire the right to appropriate to himself the materials which were common to all persons before so as it exclude those persons from a future use of such materials, but then they have no right to use such materials with his improvements superadded, whether they consist in plan, arrangement, or illustrations or combinations, for these are strictly his own . . . . . In truth, in literature, in science and in art there are and can be few, if any, things which, in an abstract sense, are strictly new and original throughout."

9. In Halsbury's Laws of England (Third Edition) Vol. 8, the observations in University of London Press, Limited v. University Tutorial Press, Limited ((1916) 2 Ch. 601), have been reproduced at page 373, and the position has been neatly summarised thus‑

The labour of compiling a programme where time, skill and money have been expended upon the form and arrange ment is sufficient to enable the compiler to restrain the copying of his work.

10. A survey of the decided cases would show that the works in which copyright has been held to subsist vary widely. In Collis v. Cater, Stofell & Fortt Limited ((1898) 78 L T 613), it was held that though a list of goods sold by a chemist was as entirely without literary merit as anything could be, nevertheless it was an "original literary work" entitled to copyright protection.

It was held in Reliance (Nameplates) Ltd. and another v. Art Jewels, Ltd. ((1953) 1 All E R 759), to subsist in a coronation commemorative medallion, and in Johnstone v. Bernard Jones Publications Ltd. and Beauchamp ((1938) 1 Ch. 599), its sub-sistance in tables for use in football competitions comprised in two original literary works, was not denied. In Football League Ltd. v. Littlewoods Pools Ltd. ((1959) 1 Ch. 639). It was held to subsist in chronological lists of footballs match fixtures; and in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. ((1964) 1 All E R 465 (H L)), it was held to subsist in a football coupon as a compilation.

Even a reprint of selected passage from non‑copyright work may be an "original literary work" within the meaning of Copyright Act. It was so held by the Privy Council in, McMillan n & Company Ltd. v. K & J. Cooper (L R 51 1 A 109 = A I R 1924 P C 75). The appellants n that case had published in India a book of which the text consisted of passages selected from North's Translation of Plutararch's Life of Alexendar, words being introduced in some instances in order that the text should form an unbroken narrative; introductions and notes suitable for educational purposes were added. North's Translation consisted of 40,00 words; the text of the appellants' book of 20,000. The appellants alleged that a similar book published by the respondents, also with notes, was a breach of their copyright. It was held by their Lordships that there had not been expended upon the text of the Appellants' book sufficient knowledge, labour, judgment or literary skill to entitle them to copyright in it; that but they were entitled to copyright in the notes, and that as to them there had been an infringement by the respondents.

In Copinger and Skone James on the Law of Copyright (8th Edn.) the law has been summarised on page 124 in the following words:

"In the case of compilations such as dictionaries, gazetteers, grammers, maps, arithemetics, almanaces, encyclopaedias and guide books, new publications dealing with similar subject-matter must of necessity resemble existing publications and the defence of `common source' is frequently made where the new publication is alleged to constitute an infringement of an earlier one This defence may merely consist in pointing out that the defendant's work might have been taken from earlier non‑copyright matter, and that its similarity to the plaintiff's does not create any necessary inference that it has been copied from the plaintiff's, rather than from other similar works. Whereas with strictly original work any identity of phrase is sufficient evidence of copying, with many compilations it is only from external evidence, or from a minute examination of textual errors that an infringement can be established.

Alternatively, the defence may be that the plaintiff has no copyright in his works because it is not original, but a mere reproduction of earlier non‑copyright matter. This question has been dealt with in detail in an earlier chapter, but it must not be forgotten that, though a plaintiff has no copyright in the words, he may have copyright in the arrangement as a compilation."

11. It would thus be seen that all such compilations are capable of having copyright on them and there is no reason as to why a diary should be considered to be an exception in this respect. Obviously, in case of a diary, the amount of "originality" would not be much; but even that small amount is protected by law, on the principle that no one should be permitted to appropriate for himself the result of another's brain, skill, labour and judgment.

12. Mr. S. M. Sadiq, has contended that most of the material in the plaintiff's diary, namely, R. L. R. 1956 consists of Acts and Notifications of the Government or such other material which by its very nature could not be the subject‑matter of copy right, as the compilation thereof involves no brain, skill or labour; and the compilation by one person is likely to be the same as that of another person. The learned counsel placed reliance on G. A. Gramp & Sons v. Frank Smythson Ltd. ((1944) 2 All E R 92). This decision as we have already expressed is distinguishable on facts and was distinguished by the House of Lords in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. We may repeat that in that case seven tables had been copied from the respondents' diary by one Eckford, who entered the respondents' service as diary Manager and Sales Manager. There was no evidence that any of these tables were composed especially for the respondents' diary and there was not even a single feature of them which could be pointed out as novel or specially meritorious or ingenious from the point of view of the judgment or skill of the compiler. All the seven tables contained common place, "Inland Postal Rates", "Empire and Foreign Postage" "Equivalents of Metric and Imperial Weights and Measures", "Empire and Foreign Time Table", "Sunset Table" and "per centage Table," etc. which are ordinarily found in every diary. There was also no suggestion that there was any element of originality or skill even in the order in which the tables were arranged. It was, accordingly held that no copyright existed in the plaintiffs' diary This case was, however, distinguished on facts by the House of Lords in a later case which has been referred to above.

Mr. Sadiq also invited our attention to pp. 219 & 220 of the paper book which contain tables prepared by him to show that most of the material in the plaintiff's diary also found its place in other diaries as well. We have carefully examined the R. L. R. 1956 Diary in the light of the contentions of the learned counsel. It is no doubt true that most of the material in the plaintiff's diary consisted of Acts and Notifications of the Government and other common place information. The plaintiff, however, appears also to have made some contribution of his own. For example, the plaintiff had condensed the important sections of the Small Causes Court Act and Karachi Rent Restriction Act, omitting those sections thereof which in his judgment were unnecessary for day to day work. These were accordingly, not mere copies of the original Acts. The scales of process‑fee appearing at page 38 of the diary are no doubt copied but the notes therein appearing on pages 40.41 are a contribution of the plaintiff himself. It is immaterial whether these notes are really useful or not. The fact remains that the plaintiff has spent some time and labour howsoever small it may be in writing them. The plaintiff claims that the exchange rates given by him on page 50 of R. L. R. 1956 diary are also mentioned in the tables that have been devised by him and that they were not so given in any other diary. We find no reasons to doubt the plaintiff's assertion on this point. In any case, Mr. S. M. Sadiq has not been able to show us any other diary in which the exchange rates are given in the same or identical form. The plaintiff's diary has also another novel feature in the form of a calander which appears on every page thereof. It is conceded by Mr. Sadiq that this is plaintiff's own idea and that it has not been borrowed from any other source. It is immaterial whether it involves a great deal of labour or not; the fact remains that some skill and labour must have been involved in devising the same.

The quality of being "original" has nothing to do with the literary or artistic merit of the work, even a piece of bad writing will be protected by the Act so long as it is "original". In fact, o in so far as artistic works are concerned, i.e., paintings, drawings, photographs etc., the Act emphasizes that protection is irrespective of artistic quality. Indeed in a case relating to a book before the Courts at the beginning of the century the Lord Chancellor of the day expressed the view in Walter and another v. Lane (1910 A C 539), which has been already referred to above, that copyright is given to the first producer of a book irrespective of the fact whether that book be wise or foolish, accurate or inaccurate, or of literary merit or of no merit whatever.

In V. Govindan v. E. M. Gopalakrishna Kone and another (A I R 1955 Mad. 391), the plaintiff had published an English‑Tamil Dictionary called the "Excelsior Junior School Dictionary" in 1932. Thereafter the appellant brought out English Tamil Dictionary in 1947 which resembled the first dictionary. In a suit filed for infringement of copyright by the plaintiff contentions similar to those raised before us in appeal were advanced. Pancbapakesa Ayyar, J., while dealing with the contention that no originality can be claim ed in such compilations observed as follows:

The next contention was that no originality can be claimed in dictionaries, compilations, guide, books, maps etc., as they involve no brains, skill and labour, and the compilation by one man will be exactly the same as the compilation by another man. I cannot agree. Many men have not got the brains, skill and labour to compile dictionaries, gazetteers, grammers, maps, almanacs, encyclopaedias and guide books. Nor are all of such compilations of the same nature. Then it will be obvious that only one dictionary gazetteer, grammer, map, almanac, encyclopaedia or guide book will sell, and not the rest. Any men who refers to the Oxford Dictionary, Webster dictionary and Chambers dictionary can easily find out the difference between these dictionaries. There is considerable difference in dealing with the subject‑matter. That will be specially so when the dictionary is not of all the words in the language but of `select words' considered suitable for high school boys, where the very same words in one dictionary being taken over to another and later dictionary will certainly prove piracy." Regarding the plea of common source it was observed thus:

Regarding this plea of `common source', it is well‑known that a person relying on it must show that he went to the common source from which he borrowed, employing his skill, labour and brains and that he did not merely do the work of the copyist, by copying away from a work like Exh. A. 1, as D. W. 1 has done here. So, the plea of common source will not help the defendants in this case.

I may add here that the argument of the appellant's counsel that never can there be any right to a book involving an infringement is not countenanced by modern law. Even an unauthorized translator of a well‑known book covered by copyright, like one of Bernard Shaw's plays, cannot be said to have no right to maintain an action against a person who simply takes his book and copies it bodily prints and sells it in the market. The original owner of the copyright may have a right to proceed against the translator, for breach of his copy right. But the translator, it seems to me, is not without any right whatever against the pirate printer of his translation. The Penal Code goes even further, and holds that even stolen property in the possession of a thief can be stolen by another thief. Though the copyright law does not go so far, it does go some extent in the same direction, as stated above.

The next contention was that the defendants had the same right to the words of the English and Tamil languages as Subba Iyer, and could use them just like the plaintiff and Subbier. That is so, but a man is not allowed to appropriate for himself the arrangement, sequence, order, idiom, etc., employed by another, using his brains, skill and labour. Even in law reports, containing only approved reports of cases decided by Courts, there is copyright. In modern complex society, pro visions hale to be made for protecting everyman's copyright, whether big or small, whether involving a high degree of originality, as in a new poem or picture, or only originality at the vanishing point, as in a law report."

13. It would thus be seen that it is not necessary in all cases that the matter, or language contained in a work, or the thoughts, ideas and sentiments which it expresses, should be original to entitle the author to the protection of a copyright. Diaries, Dictionaries, gazetteers, grammers, maps, arithmetics, almanacs, encyclopaedias, guide books, hotel registers, football coupons and hundred of other compilations which are valuable additions to the general store of knowledge by reason of their peculiar arrangement and usefulness can be varied subject of copy rights because they often involve such research and learning as that displayed by authors of mere pretentious works accounted to be thoroughly original in conception and execution Originality in such works does not mean an entirely new concep tion for the compilation in question. To produce an original compilation designed for commercial or other use the compiler must start from scratch and do his own descriptive matter and do his own editing.

We have accordingly, no hesitation in deciding the first point in favour of the plaintiff and we hold that he had copyright in Herald 1955 Diary on which his name appears as the compiler thereof and also in R. L. R. Desk Diary 1956, which is admittedly compiled by him.

14. We shall now consider the next question, namely, whether the said copyright has been infringed by the defendants.

The main contention of Mr. S. M. Sadiq in this respect is that most of the material has been borrowed by the plaintiff himself from other sources in respect of which there is copyright. According to the learned counsel even if a particular matter is the subject‑matter of copyright, the same would vest in the original author thereof and the plaintiff could not claim copyright in respect of something which he himself has copied. We have no hesitation in repelling this contention. The plaintiff is not claiming any copyright in respect of an individual item of the material appearing in his diary but in the compilation as a whole, which was the result of skill and labour on his diary in selecting suitable material and arranging the same in a particular manner so as to make it most useful in his opinion to the public at large. He also made contributions of his own, however, small these might have been as we have already stated above.

15. The quality and degree of original work required by the Courts under the copyright statutes are very moderate. Such compilations as diaries, dictionaries, social registers, trade catalogues etc., the materials for which are gathered by means of correspondence and personal interviews with the persons concerned, are protected by the copyright statutes even though they possess no other originality than that which may be attributed to an industrious and independent collection and orderly arrangement of facts and their preparation involves no such literary ability as is expected of authors of repute.

However, compilation of facts, which the compiler has gathered by independent effort from original sources is a new, work, even though the contents thereof, including the plan and mode of imparting the subject are old and have been used before, because such a compilation is the product of original literary labour. As observed by their Lordships of the Privy Council in Macmillan & Co. v. K. & J. Cooper, a publication of which the text consists of a reprint of passages selected for use from a work which does not enjoy the protection of copyright may be entitled to copyright, if the selection of the passages would require, for the purpose of effecting the object in view, accurate scientific knowledge, sound judgment and literary skill. But the question what amount of such knowledge, judgment and skill is necessary in order to acquire copyright is a question of degree: and must depend largely on the facts of each case.

16. A plea of "Common Source" can be successfully raised only if the defendant establishes that he himself went to the J common source and that he did not merely commit piracy of someone else's labour and skill by salavishly copying his work. As Lord Atkinson pointed out in Macmillan v. K. & J. Cooper, the moral basis upon which protective provisions of Copyright Act, 1911, rests is the Eighth Commandments "Thou shall not steal".

In the present case it is conceded by Mr. S. M. Sadiq that the Lotus Diary for the year 1956 is a verbatim copy of plaintiff's R. L. R. 1956 Diary. In the first 52 pages of the former which consist of useful information there is not a single addition, alteration or even omission from the same number of pages in the plaintiff's diary. The rest of the matter is also identical. The composition of the two is exactly the same and Mr. Sadiq concedes that the same block has been used for printing corres ponding pages of each of the two diaries. The plea of common source is accordingly not available to the defendants in this case.

17. We shall now consider the other defence taken by Mr. Sadiq namely that the material for Lotus Diary was supplied by the defendant No. 1 and that the defendant No. 3 was ignorant of the copyright of the plaintiff.

It has been held in Mansell v. Valley Printing Company ((1908) 2 Ch. 441) and Bryne v. Statist Company ((1914) 1 K B 622) that copyright being a propriety right, ignorance is no excuse for infringement.

In Copinger's Law of Copyright (8th Edition) position is summed up on pages 120 in the following words:‑

"If, however, the defendant has in fact derived his work, either directly or indirectly, from the plaintiff's the fact that the defendant was unaware that the work he has used was the plaintiff's, or was the subject of copyright, affords no defence to the action, although in the latter case only, it may affect the remedy. Copyright being a proprietary right, ignorance is no excuse for infringement."

The defendant No. 1 was also not examined in Court to show whether the defendant No. 3's assertion was correct, and if so as to how the defendant No. 1 had collected exactly the same material in exactly the same order and made exactly the same mistakes. Where a party charged with literary piracy claims to have gone to the common source and does not produce the person who did the work for him, so that he may be cross‑examined as to the sources from which he took his work and account for the singular coincidences found in the piratical copy and the plaintiff's work, the Court needs little additional proof of the question of piracy.

We do not, therefore, have the slightest hesitation in coming to the conclusion that in publishing the Lotus 1956 Diary the defendant No. 3 infringed the copyright of the plaintiff:

18. This brings us to a consideration of Lotus Diaries for the years 1957 and 1958. Mr. S. M. Sadiq, contends that the position in respect thereof is different as these are not a verbatim reproduction of R. L. R. 1956. It is no doubt correct that a few changes have been introduced here and there in these Diaries but that by itself would not deprive the plaintiff of his copyright.

In many cases the alleged infringement does not consist of an exact or verbatim copy of the whole or any part of the earlier work, but merely resembles it in a greater or a lesser degree. Indeed, it is unusual for an infringement to consist of an exact reproduction of the whole of the plaintiff's work.

Section 1 (2) of the Act defines "copyright" as the sole right to "produce" or "reproduce" the work or any "substantial part" thereof. The expression "substantial" has not been defined but a survey of the decided cases would show that what has to be looked into is the nature and the object of the selection made, the quality and value of the material used and the degree in which the use may prejudice the sale, or diminish the profits or supersede the objects of the original work. Very often the quality of the material approved is more important than the volume thereof. If so much is taken that the value of the original is diminished or if the labour and skill of the original author are substantially to an injurious extent appropriated by another that would be sufficient to constitute a piracy.

19. In Corelli v. Gray (29 T L R 570), it was pointed out that similarities between the two works may be due to any of the following four hypotheses‑

(i) mere chance;

(ii) both works being taken from a common source ;

(iii) the plaintiff's work being taken from the defendant's ; or (iv) the defendant's work being taken from the plaintiff's. It is only on the fourth hypothesis that an infringement can exist. Developing this point Copinger in his Law of Copyright (8th Edition) observes at page 123 as follows:‑

"But, assuming that the Court is satisfied that the fourth hypothesis applies, can there be infringement without exact reproduction? In fact the Court has never allowed a defendant to evade the provisions of the statutes by merely altering the form of the words in the original work, but it is somewhat curious that the Act of 1911 does not directly make such alterations infringements, for it is only an infringement to reproduce a substantial part of a work. On the other hand, section 35(1) contains the definition; "Infringing", when applied to a copy of a work in which copyright subsists, means any copy, including any colorable imitation, made, or imported in contravention of the provisions of this Act." While the expression "infringing copy" only occurs in section 7, which deals with the ownership of such copies, it has been assumed that a colourable imitation is an infringement of copyright within the meaning of the Act, presumably on the ground that to forbid the making of copies in any material form necessarily involves the prohibition of no colourable imitations, especially in view of the fact that the Act proceeds to declare that such imitations are to be deemed to be the property of the owner of the work infringed.

Various definitions of `copy' have been suggested, but it is submitted that the true view of the matter is that, where the Court is satisfied that a defendant has, in producing the alleged infringement, made a substantial use of those features of the plaintiff's work in which copyright subsists' an infringement will be held to have been committed if he has made such use, he has exercised unlawfully the sole right which is conferred upon the plaintiff."

It would thus be seen that the protection extends not only to exact copies but to colourable imitations as well for a copy is, nonetheless a copy because there are only colourable differences.

20. In Scott v. Standord ((1867) 3 E C 718), the plaintiff had published statistical returns of all coal imported into London and the defendant, in giving the universal statistics of the United Kingdom had copied from the plaintiff's work to the extent of one third of the whole of the defendant's work. It was on these facts decided that having regard to the quantity and matter of information which had been taken and republished without the exercise of any independent thought and labour, and the prejudice to the plaintiff in having the sale of his work superseded by this publication in a cheap form of his labours, the plaintiff was entitled to an injunction. It was observed in this case, that no man is entitled to avail himself of the previous labours of another for the purpose of conveying to the public the same information although he may append additional information to that already published.

Similar observations were made in Macmillan and another v. Suresh Chunderdeb (I L R 17 Cal. 951), which was followed in a later Calcutta case reported as Mohini Mohan Singh and others v. Sita Nath Basak (A I R 1931 Cal. 233). In that case the plaintiff was the author of a book entitled "Adarshalipi‑o‑Saral‑Barna‑Parichay", which was published in 1902. In 1919 the defendant published two books called "Nutan Patsala Adarshalipi Prathmbhag" and "Nutan Maktab Adarshalipi Prathambhag" respectively. There were strange coincidences, series of coincident reproductions and although it could not be said for certain that the defendants' work was a mere imitation of the plaintiff's work as there were differences and improvements in the later publication, the impression left was that the defendant in his work had largely copied the plaintiff's book. Although there was some exercise of individual choice and some judgment also in adding some new features which might be considered improvements on the plaintiff's books; it was nevertheless held, that the defendants book was a colourable imitation of the plaintiff's work.

21. We may also refer in this connection to a case of the Allahabad High Court reported as Gopal Das v. Jagannath Prasad and another (A I R 1938 All. 266) and in particular the following observations appearing on page 270 thereof:‑

"The whole of this matter about whose similarity there is no dispute forms a substantial part of the book. When it is established that the defendant copied this matter from the plaintiffs' book, it would not be unsafe to presume that the other matter in defendant's book which bears similarity to the matter in the plaintiffs' book was also taken from the plaintiffs' book. The plaintiffs compiled their book with considerable labour from various sources and digested and arranged the matter taken by them from other 4uthors. The defendant instead of taking the pains of searching into all the common sources and obtaining his subject‑matter from them availed himself of the labour of the plaintiffs and adopted their arrangement and subject‑matter. Such a use by the defendant of the plaintiff's book cannot be regarded as legitimate."

After citing the case of Jarrold v. Haulston ((1857) 3 K & J 708), the learned Judges went on to observe as follows:‑

"No man is entitled to avail himself of the previous labours of another for the purpose of conveying to the public the same information, although he may append additional information to that already published."

22. As to when a work would be deemed to be a colourable imitation has been explained in Halsbury's Laws of England, Third Edition, Volume 8, at pages 426 and 427 in the following words:

"When considering whether a work is a colourable imitation, however, it has always to be borne in mind that a plaintiff in a copyright action will not succeed unless he establishes that the defendant has directly or indirectly made an unlawful use of the work in which the plaintiff is entitled to copyright. If, therefore, the imitation is an imitation of the plaintiff's idea only, but not of his literary artistic or musical work, or if the resemblance is due to coincidence or derivation from a common source, the plaintiff will not succeed; and while in a case in which use of the plaintiff's work is established, the test for determining whether a work is a copy or reproduction of another is whether it comes so near the original as to suggest that original to the mind of every person seeing it, the fact that a work complained of does suggest the original is not sufficient to enable a plaintiff to succeed in his action, for the similarity may be due to the fact that both works are derived from a common source or that the similarity rests in the idea of the work and not in its form; the onus is on the plaintiff to show that the defendant, in making his work, has appropriated the labours of the plaintiff. If therefore, the defendant denies copying and is not cross‑examined, infringe ment will not be inferred from mere similarity. The question whether the plaintiff's labours have been so appropriated is one of fact, and such appropriation may be inferred from evidence that there are errors common to both works, or from the cumulative effect of a number of similarities."

Judged in the light of the principles enunciated above, we have no doubt that the Lotus Diaries for 1957 and 1958 are colourable imitations of R. L. R. 1956 Diary. As we have already observed and this position has not been disputed before us, Lotus 1956 is a verbatim copy of the plaintiff's Diary for the same year, without a single addition, alteration or omission. It has been admitted by the plaintiff that "from 1957, 1958 and 1959, the material supplied was what appeared in the Diary of 1956 as amended from year to year by Mr. Tanzil‑ur‑Rehman, Advocate." D. W. 3

Mr. Tanzil‑ur‑Rehman, whose evidence has been strongly relied upon by Mr. Sadiq stated the same facts in the following words:‑

"In September 1956, the defendant No. 3 approached me for consultation as to what I would like to be added to the material already printed which he had for the diary of 1956. I reviewed the headings and suggested necessary additions. For diaries 1958 and 1959, I did the same. I believe that some of the subject‑matter was deleted and some added for diaries of 1958 and 1959, as per my instructions. I only read headings. I admit the bill and receipt Exh. D/1 and D/2. I have charged Rs. 50 for compilation as I had also prepared the table of contents."

It would thus be seen that it is the case of defendant No. 3 himself that his Lotus Diaries for the years 1957 and 1958 were based on the same diary for the year 1956 with only a few additions and alterations suggested by Mr. Tanzil‑ur‑Rehman. That the contribution of Mr. Tanzil‑ur‑Rehman in this respect was not much can also be seen from the fact that he charged only a paltry amount of Rs. 50 for all the work done by him in this connection.

23. A comparison of, the Lotus Diaries for the years 1957 and 1958 with R. L. R. 1956 would show that the items "list of contents", "personal memoranda", "train services", "weights and measures", "Pakistan general sales tax, Ready reckoner," "super tax rates", "notes on Registration Act," etc. are verbatim copies in both 1957 and 1958 Lotus Diaries. In addition, in Lotus 1957 even the "preface", "list of contents", "income‑tax Schedule" and "list of recognized Chambers of Commerce and Trade Associations," are verbatim copies of corresponding items in R. L. R. 1956. Some of the items such as "postal information", "Criminal Courts of original jurisdiction", "computation of Court‑fee", "Notes on Stamp Act", "Notes on Registration Act", "Notes on Law of Limitation", "scales of process‑fees" and "Table of Exchanges rates" are really copied from the plaintiff's R. L. R. 1956 with a few changes here and there in an attempt to hide the piracy. There are also numerous common mistakes in the information given in these diaries. What is more, even errors of spelling have been carried over from R. L. R. 1956 at scores of places. On a comparison of these diaries as a whole an impression is created that the basis on which these diaries were prepared was plaintiff's R. L. R. 1956. This position has also been admitted both by defendant No.. 3 himself as well as his principal witness Mr. Tanzil‑ur‑Rehman.

We accordingly, hold that in publishing the Lotus Diaries for the years 1957 and 1958 the defendant No. 3 infringed the copy right of the plaintiff.

24. What remains now to be considered is the quantum of damages. Mr. S. M. Sadiq has contended that the remedies under sections 6 and 7 of the Copyright Act, 1911 are mutually exclusive and the plaintiff can under no circumstances be entitled to both.

He relied on William Butler v. Prof. Eric Dickinson and others ((1936) 1 A E R 177). This case, however, does not support the proposition canvassed (1) A I R 1938 Lah. 173 by the learned counsel. On the contrary it has been clearly recognized therein that the remedies provided under sections 6 and 7 are not alternative although where the amount of damages awarded under section 6 covers the price of permission to publish the work in question, the author may not be entitled damages also under section 7.

25. The question whether damages for infringement and conversion are cumulative or alternative has been dealt with in several cases; and it may be useful to refer to a few of them.

In Sutherland Publishing Company Limited v. Caxton Publishing Company Limited (1), the question was dealt with at length and it was held, affirming the decision of Crossman, J., in Sutherland Publishing Co. Ltd. v. Coxton Publishing Co. Ltd. ((1937) 1 A E R 338), that the remedies under sections 6 and 7 of the Copyright Act, 1911, were cumulative and not alternative as each claim was in respect of a different wrong, the former for a wrong done to an incorporeal right, the copyright; and the latter for conversion of particular chattels, the infringing copies, which by section 7 are deemed to be the property of the plaintiff.

This authority is in conformity with the views expressed in Halsbury's Laws of England, Third Edition, Volume 8, in Note 815 on page 449, where in it has been clearly recognized that a successful plaintiff can obtain damages for the conversion of infringing copies, in addition to damages for infringement.

In Mohini Mohan Singh and others v. Sita Nath Basak (A I R 1931 Cal. 233) it was observed as follows :‑

"The rights conferred upon the owner of copyright by sections 6 and 7 of the Copyright Act of 1911 are based on different grounds, that under section 6 he has the usual remedies available where a similar right of property is infringed and can recover damages for the loss sustained by infringement, or if he prefers payment of the profits resulting from piracy and that under section 7 he has an action of detinue in respect of unsold infringing copies and plates which by virtue of the section are deemed to be his own property and an action for conversion in respect of such infringing copies and plates as may have been sold; and further that the measure of damages for conversion under section 7 is not limited to profits but extends to the full value of the work converted."

Copyright is a right of property and gives rise to a claim for damages under section 6 of the Act like any other injury. Section 7 of the Act, on the other hand deals with the remedies under detinue and conversion. It gives right to the owner of the copyright to take proceedings for the recovery of the possession of all the infringed copies and also confers on him a right to take proceedings in respect of the conversion of such copies. It would thus be seen that the very basis of the claim under sections 6 and 7 are fundamentally different and cannot be mutually alternative.

26. In the plaint, Exh. 1, as well as in his evidence at the trial the plaintiff had claimed a consolidated amount of Rs. 10,000.00 (rupees ten thousand) as damages for breach of contract, infringement of copyright and conversion. This amount was reasonable considering that on his own admission the defendant No. 3 sold 600 copies of Lotus 1956, 1,700 copies of Lotus 1957 and 1,800 copies of the Lotus 1958, which were priced at Rs. 4‑8‑0, Rs. 4‑8‑0 and Rs. 4 respectively; and the learned Additional District Judge was correct in decreeing the entire amount of Rs. 10,000.00 (rupees ten thousand) in favour of the plaintiff:

The plaintiff now claims a much larger amount before us, but we are afraid, we cannot grant more relief than what has been prayed for in the plaint itself.

The claim for exemplary damages made by the plaintiff before us is equally without justification as the same has not been asked for in the plaint.

27. The plaintiff has also made an application under Order XLI, rule 27, C. P. C. to bring on record diaries published by the defendant No. 3 during the period subsequent to 1958. The plaintiff's object in moving this application is, firstly, to claim farther damages in his appeal and secondly, to obtain an order with regard to the alleged violation of the interim injunction granted by the trial Court. As regards the first object we are afraid we cannot help the plaintiff as we are of the view, that the plaintiff's remedy was to file a separate suit for damages. On the second object, the proper forum would be the trial Court whose injunction is alleged to have been violated. We would refrain from expressing any opinion on this aspect of the case so as not to prejudice the decision of the trial Court.

28. We have already held that the trial Court has correctly assessed the damages at Rs. 10,000. But the trial Court declined to issue any injunction against the defendants to restrain them from infringing the plaintiff's copyright in future. In this respect the trial Court has taken an erroneous view of the plaintiff's case. If there is an infringement of copyright, the plaintiff is entitled not only to damages but also to protection of his copyright by way of an injunction. We feel that the trial Court should have given this further relief to the plaintiff. We would accordingly accept the plaintiff's appeal (First Appeal No. 72 of 1963) to this extent only, i.e., that the plaintiff shall have an injunction to restrain the defendants or any of them from infringing his copyright in the diaries in question by printing or publishing the same or such colourable imitations thereof as would in effect constitute the defendants' publications copies of the plaintiff's diaries.

29. In the result the judgment and decree in First Appeal No. 72 of 1963 shall be modified to the extent indicated above. In the view of the matter we have taken defendant No. 3's appeal i.e. First Appeal No. 41 of 1963 stands dismissed. The plaintiff shall have one set of costs in both the appeals as against defendant No. 3 only.

S.Q. Order accordingly.