Blast From the Past: Concept of Joint Authorship in Najma Heptulla v. Orient Longman

Introduction

April 23, 1616 is said to be the date when literature greats Shakespeare, Cervantes and Inca Garcilaso de la Vega passed away. Many prominent authors also celebrate their birthdays on the same date. Hence, it was befittingly decided by UNESCO to be the date on which its 1995 edition of General Conference was held in Paris. The General Conference aimed “to pay a world-wide tribute to books and authors on this date, encouraging everyone, and in particular young people, to discover the pleasure of reading and gain a renewed respect for the irreplaceable contributions of those who have furthered the social and cultural progress of humanity.”^[1]Consequently, the World Book and Copyright Day was created and today marks as the 24th Anniversary of the same.

In the spirit of the day, we analyse the landmark and internationally revered judgment delivered by the Delhi HC in Najma Heptulla v. Orient Longman^[2], a judgment which concerns with Copyright and joint authorship rights in a literary work.  

Background

The focal point of the matter was the autobiography of freedom fighter and the first Education Minister of India Maulana Abdul Kalam Azad which was titled India Wins Freedom. The said autobiography was composed by Professor Humayun Kabir who convinced Maulana Azad to write and that he would compose the same to relieve him of the burdens of writing. Working together, the book was finished by Maulana Azad and Prof. Kabir in November 1957. However, before it could be published Maulana Azad passed away due to a stroke on February 22, 1958.
 

In March 1958, Prof. Kabir wrote to the National Archives (and later to the National Library, Calcutta) asking them to be the trustees of the complete manuscript, which also included 30 pages which were required to be published only 30 years after Maulana Azad’s death i.e. after February 22, 1988. Pursuant to their acceptance, Prof. Kabir sent one copy of the manuscript each to the Archive and the Library in a sealed cover for safe custody. Maulana Azad’s sister Fatima Begum and his nephew Nooruddin Ahmed were the nearest living relatives at the time of his death. In May 1958, both Fatima and Nooruddin signed two separate identical agreements consenting to publish the said book, excluding the 30 pages, with Orient Longman Limited. And in September of the same year, Prof. Kabir entered into an agreement to publish the said book sans the 30 pages.
 

The agreement highlighted that Maulana Azad had dictated and given notes to Prof. Kabir who composed the same in the form of a book. The same book was reviewed and altered by Maulana Azad who later approved for its publication. Azad, as per the agreement, had requested that the 30 pages be published after 30 years and the said complete manuscript be sent into safe custody. The agreement provided Orient Longman to publish the book at its own expense and risk and to pay the composer half of the royalty which was to be paid later to Indian Council of Cultural Relations and the other half to Fatima and Nooruddin in equal shares. The agreement, most importantly, granted Orient Longman, the first option to publish the complete book with the sealed 30 pages after the seal is broken on February 22, 1988.
 

It is to be noted that Fatima and Nooruddin had already been parties to a decision by Hafiz Mohd. Ibrahim pertaining to who would inherit the copyrights to the works of Maulana Azad, which they agreed to abide by. The decision by Hafiz Mohd. upheld Nooruddin’s claim that he was solely entitled to the copyrights of all works and writings of Maulana Azad, whether published or unpublished. As a response to the publisher’s letter, Nooruddin confirmed Orient Longman’s first publication rights to the complete book (including the 30 unpublished pages after February 22, 1988). The same letter was written to Ms. Nahid Siddiqui, granddaughter of Fatima, who, as per the Plaintiff (also the granddaughter of Fatima), was surprised to learn that Orient Longman was claiming complete rights over Maulana’s book. 

The Contentions

The Plaintiff contended that only the legal heirs of Maulana Azad had the right to decide as to the publication of the book and that she had sent a notice to the National Library and National Archives to not open the seals of the unpublished pages. The Plaintiff had also filed for an injunction, under Order 39 Rules 1 and 2 against the Defendants to prevent them from breaking the seals, which was granted resulting in the Defendant No. 1 (Orient Longman) filing for an injunction vacation under Order 39 Rule 4. 

The Issues

Justice B.N. Kirpal, who was the sole judge in this case, identified two questions which required consideration:

1. Who is the author of the book India Wins Freedom?
    
2. Whether Prof. Kabir had any authority to execute the agreement dated September 2, 1958, with Orient Longman?

In the following sections, I will analyse the judgment on the basis of the primary question which is regarding the authorship of the book. 

Who is the Author of the book India Wins Freedom?

As per Section 55(2) of the Copyright Act, 1957, the person whose name appears on the copies of the literary work as published shall be presumed to be the author of the work unless the contrary is proved. Justice Kirpal states that if the provision is to be followed without reading beyond the words, Maulana Azad would be the sole author of the book, which was the contention of the Plaintiff. However, he weighs the contention of the Defendants and analyses the same. Defendant No. 6, the daughter of Prof. Kabir, argues that he is the sole author of the book. Defendant No. 1 Orient Longman contends that both Maulana Azad and Professor Kabir are joint authors. 

The Preface

In order to determine the nature of authorship, Justice Kirpal first analyses the Preface of the book. The Preface, written by Prof. Kabir, makes it clear that it was on his persuasion that Maulana Azad agreed to write his autobiography where Prof. Kabir would act as a composer to relieve him of the burden of writing. It is also established that Maulana Azad would describe his experiences in Urdu and Prof. Kabir would make notes and then compose the chapter in English after which both would review the draft and make amendments and alterations. According to the Preface, Maulana Azad decided that some characters should not be published and instead directed Prof. Kabir to send 30 pages in a sealed cover to the National Archives and National Library to be published later. 

The Agreement

Next, Justice Kirpal analyses the contents of the September 2, 1958 agreement. The agreement deems Prof. Kabir to be the composer who also wrote the Preface and composed Maulana Azad’s thoughts into the book. The agreement also stipulates that it was Maulana Azad’s wish that one-half of the royalty was payable to Prof. Kabir. At this stage, Justice Kirpal accepts the contents of the Preface as correct.

Case Laws

Now Justice Kirpal sets out to determine the nature of authorship through three English cases:
 

1. Donoghue v. Allied Newspapers, Ltd.^[3]

This case involved a series of articles published in a newspaper on a well-known jockey Donoghue who communicated his experiences to a journalist Mr. Felstead. Mr. Felstead made notes on the basis of their conversations and published the articles after some alterations were made by Donoghue in the final drafts. When a subsequent set of articles were published in another journal at the instance of Mr. Felstead, Donoghue filed for infringement of his copyright. Justice Farewell held that although it was the Plaintiff who supplied the stories for the article, it was Mr. Felstead who wrote them in his own words. Hence, only Mr. Felstead was held to be the holder of copyright as the sole author of the articles. 

With regard to the application of this case, Justice Kirpal states that although the application of this case would result in Prof. Kabir being the sole author, the fact of joint authorship (of both Donoghue and Mr. Felstead) as a concept was not considered by the court. He states that this concept is recognised in the Indian Copyright Act, 1957 under Section 13(2).

2. Walter v. Lane^[4]

Similar to the above case, this case involved a reporter who recorded the speeches of Lord Rosebery verbatim and reproduced them in The Times after making some corrections and revisions. It was held by the court that the copyright vested with the reporter. 

Justice Kirpal highlights that this case is clearly distinguishable from the present one as the dispute of ownership was not between Lord Rosebery and the reporter but between the reporter and the newspaper when the reporter tried publishing the speeches as a book. He also states that it was the reporter who worked solely on the reports and there was no collaboration between him and Lord Rosebery.

3. Levy v. Rutley^[5]

In this case, one person was employed by another to write a play and the employer suggested the subject. When the play was completed, the plaintiff and some members of his company made various alterations in scenes and dialogues. One member also wrote a small scene which was added in the play. The question was whether the plaintiff was a joint author with the writer. The court rejected the claim of the plaintiff as he had contributed a very small part of the entire piece at a subsequent time. Justice Byles and Justice Keating held that in order for two people to be joint authors there must be a collaboration and preconcerted joint design. 

Holdings

Justice Kirpal, after the aforementioned analysis, holds that it would defeat the purpose of copyright law if only the composer of a work can be the author of the said work. He states in paragraph 27: 

“A literary work consists of matter or material or subject which is expressed in a language and is written down. Both the subject matter and the language are important. It is difficult to comprehend, or to accept, that when two people agree to produce a work where one provides the material, on his own, and the other expresses the same in a language which is presentable to the public then the entire credit for such an undertaking or literary work should go to the person who has transcribed the thoughts of another. To me it appears that if there is intellectual contribution by two or more persons pursuant to a reconverted joint design, to the composition of a literary work then those persons have to be regarded as joint authors.”

Therefore, he holds that the facts of the case clearly show that there was a preconcerted joint design between the two, hence both Maulana Azad and Prof. Kabir were held to be joint authors of the book.

With regard to the second question, Justice Kirpal states that by virtue of accepting the royalty through the May 1958 agreement by Fatima Begum and not objecting to the publication of the book for the past 30 years (from 1958 to 1988), the legal heirs of Maulana Azad have acquiesced their right to object to the agreement made by Prof. Kabir to publish the complete book which includes the 30 unpublished pages. Hence, he rejects the injunction application by the Plaintiff and directs that the seal of unpublished pages is broken and upon rendition of accounts by Defendant No. 1 Orient Longman, it is allowed to be published.  

Conclusion

Hence, in this World Book and Copyright Day, through this landmark and internationally revered judgment delivered by the Delhi High Court in Najma Heptulla v. Orient Longman, we understand in great depth why Justice Kirpal held that when there is a preconcerted joint design between two authors, both will be held to be joint authors of the book and enjoy the rights to publish as well as the profits. 

DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.

^[1] “World Book and Copyright Day 23 April.” United Nations, United Nations, www.un.org/en/events/bookday/.

^[2] AIR 1989 Delhi 63.

^[3] (1937) 3 All. E. R. 503.

^[4] (1900) AC 539.

^[5] 1871 Vol. VI, Law Reports, C.P. VI, 523