JUDGMENT
Mahinder Narain, J.
(1) The plaintiff claims to be the exclusive licensee from the Central Board of Secondary Education for the purposes of publication of papers of 10th and 12th class.
(2) It is claimed by the plaintiff that there is a license in his favor, given by the Central Board of Secondary Education to publish the said papers.
(3) By this suit, the plaintiff seeks to restrain the defendants No. 1 and 2 from publishing the very same papers, asserting that they do not have a similar license that the plaintiff has, and being a licensee, he is entitled to restrain the said defendants form publishing the said papers.
(4) The question papers for examination are nothing but a collection of questions which are required to be answered by each examinee. They are akin to “table”. questions having been tabulated. As each question is stringing together of words of the language in which the questions appear, creating “expression”, which formulates concepts that next exposition, which need to be explained by the person taking the examination, the questions having come into being on account of skill and labour of the person who prepared the questions, each question would be copyrightable matter, and a compilation of questions which make up the question paper is copyrightable subject matter, it is a work. within the meaning of the Copyright Act.
(5) As to who has copy right in the matter, is controlled in India by the provisions of the Copyright Act, currently the Copyright Act, 1957.
(6) By virtue of section 17 of the Copyright Act copyright vests in the author of the work. The question paper is a “work” within the meaning of the Copyright Act. The author of the examination paper is a person who has compiled the questions. The persons who does this compiling, is a natural person, a human being, and not an artificial person. The Central Board of Secondary Education is not a natural person. It can per se be the author of the papers, entitled to claim copyright in the examination papers. The Central Board of Secondary Education would be entitled to claim copyright in the examination papers only if it establishes and proves that it has engaged persons, specifically for the purposes of – preparation of a compilation, known as question paper, with a contract containing a term that vis-a-vis the question paper prepared by the person engaged for that purpose, that person shall not have copyright, and that the copyright would vest in the Central Board of Secondary Examination, instead of the author of the question paper.
(7) The Central Board of Secondary Education has not filed this suit. The suit has been filed by a person, who claims to have license from the Central Board of Secondary Education to print the question papers.
(8) No person can give what it does not have. Unless the Central Board of Secondary Education has ensured that the copyright which statutorily vest in the author of the question paper, that is to say the person who has prepared each of the questions in each of the question papers, and the question paper as a whole, by exercise of his skill, knowledge and judgment, who could claim a copyright in that question paper, it has no power to grant license to print or re-print that question paper. To sustain a claimable copyright in the Central Board of Secondary Education, there must be an agreement between the Central Board of Secondary Education and the person who has prepared the question papers to the effect that whatever copyright may be claimable by the “paper setter”, would not vest in him because of the terms of his engagement before the Central Board of Secondary Education and the paper setter, but shall vest exclusively in the Central Board of Secondary Education. No copyright can come to vest in the Central Board of Secondary Education unless such an agreement is proved or established prima facie.
(9) The plaintiff has not asserted the above said essential facts in his plaint. He, however, asserts baldly that he is the licensee from the Central Board of Secondary Education, vis-a-vis the question papers which are printed by him, and further baldly asserts that the defendants No. 1 and 2 are infringing that copyright, which vests in the plaintiff by virtue of a license given by the Central Board of Secondary Education.
(10) Though the case has not been referred to by the parties, the matter of claim to copyright in an examination paper was examined in University of London Press, Limited v. University Tutorial Press, Limited (1916) 2 Chancery Division 601, wherein Peterson, J. came to the conclusion that the copyright in question papers vests in the authors by virtue of the provisions of the English Copyright Act, 1911.
(11) By virtue of the provisions of section 17 of the (Indian) Copyright Act, 1957, the author of the work is the first owner of the copyright.
(12) In the instant case, the plaintiff claims to be an assignee of the Central Board of Secondary Education. The Central Board of Secondary Education is not the author of the work. The author of the work is normally a natural person who exercises skill, knowledge and judgment in connection with the preparation of each of the questions, which are part of the examination paper.
(13) The Central Board of Secondary Education is not a natural person. It is a matter of doubt whether the same is a legal person. I say it is a matter of doubt that it is a legal person, on the basis of a reply filed by the Central Board of Secondary Education before the Monopolies and Restrictive Trade Practices Act on 04.10.1993, which reply has been annexed to the rejoinder to the application for interim injunction by the plaintiff.
(14) In this reply, assuming what is stated therein to be prima facie established and true, it appears that the Central Board of Secondary Education is a body controlled by the Secretary of the Department of Education, Ministry of Human Resources and Development, and that it has come into existence in its pre-sent form from 01.07.1962. In that reply, it is nowhere stated that the Central Board of Secondary Education owes its genesis to any law, wherein it can claim to be a statutory person, or any other legal status. It is stated as a fact in that reply that the Central Board of Secondary Education gets the question papers set from paper setters. The terms and conditions of which categorically stipulate that the question papers would be the exclusive property of the Central Board of Secondary Education, and its copyright shall always vest with the Central Board of Secondary Education.
(15) The identity and particulars of the paper setters are asserted to be confidential, and the agreements with the paper setters have not been produced for this reason. In the absence of these agreements no claim to copyright can be sustained.
(16) In the reply it was not stated, but before inc an application bearing I.A. No.8630 of 1993 had been filed, in which it was stated that the Central Board of Secondary Education is a Society registered under the Societies Registration Act, and that it could sue and be sued in the name of its General Secretary, that one of the aims and objects of the Society was book publishing, and specifically academic books. It appears that the Central Board of Secondary Education was registered as a Society by virtue of an application made on 12.08.1993. By this application, the Academic Publishers’ Association of India was sought to be added as a party to the suit.
(17) Some papers were filed in a sealed cover by one of the parties. These purported to be agreements between the Central Board of Secondary Education and the persons who had set the papers. The documents were directed to be kept in the custody of the Court Master on 16.09.1993. The documents which have been filed, were unsealed by me on 16.09.1993, and were directed to be kept in a sealed cover in the custody of the Court Master on that date. All these related to a period prior to 12.08.1993.
(18) Thereafter application bearing I.A. No.8649 of 1993 was moved by the Central Board of Secondary Education, saying that the documents produced in Court under sealed cover at request of one of the parties, be returned, and the same were returned.
(19) The result is that today we do not have the alleged agreements between the persons who bad set the papers, the authors of the question papers, and the Central Board of Secondary Education, who have purported to give license for the purposes of printing of those question papers on record of this case.
(20) The copyright in any work by virtue of the Copyright Act, 1957 vests in the author who is the first owner of the copyright. By virtue of section 18 of the Act, the copyright in existing work, (examination papers are for the present assumed to be an “existing work”) can be assigned. Section 19 of the Act prohibits assignment unless the same is in writing and signed by the assignor, or his duly authorised agent.
(21) By virtue of section 19(a) of the Act, disputes with respect to assignment of copyright are to be referred to the Copyright Board. The Central Board of Secondary Education is not a plaintiff in the instant case, so it cannot be stated or found in the circumstances of the instant case, whether the first owners of the copyright, the paper setters, authors, have the copyright in the examination papers, or whether the copyright has been vested in the Central Board of Secondary Education, by asswigninent, or contract. That will depend upon the terms of the contract or assignment, if any, vis-a-vis the paper setters and the Central Board of Secondary Education’.
(22) The question relating to nature of the copyright, and the person in whom copyright vests vis-a-vis question papers of an examination, has been dealt with by Peterson, J. in University of London Press case. In the judgment the question of ownership of copyright has been dealt with with reference to the concept of “contract of service” and “contract for service”. Both the concepts mean different things in copyright law, and different consequences ensue, depending upon whether a particular agreement was a contract of service, or a particular agreement was contract for service.
(23) In any case, in my order dated 16.09.1993, I noted that Mr. Ajay Sahni, Advocate, shown to me a question paper in English Course “A”. That question paper did not state for which year that question paper was made.’ Nor was there a claim for copyright in that paper. I directed that the said paper be filed along with index. That paper was filed on 20.09.1993. A perusal of the same clearly bears out that the paper does not bear any endorsement with reference to copyright. It does not say “copy right reserved”. It does not say “copyright with the author”. It does not say “copyright reserved by the Central Board of Secondary Education”. Nor does it have printed thereon a circle within which alphabet “C” is written, (which is universally recognised by the copyright conventions, as a claim for copyright). The question paper of English “A” runs into 7 pages. On the face of it, it is not possible to say whether there is any claim to copyright in the said paper, whether by the author of it, or by the assignee of it, if any.
(24) I have examined the effect of there being no claim to copyright in my judgment in Suit No. 1593 of 1993 dated 30.08.1993 in Lamba Brothers Pvt. Ltd. v. Lamba Brothers. (reported at ) In that judgment I had observed as follows:- Written words or “expression” created by stringing words together is copyrightable subject matter; as “tables” are prepared by expenditure of skill and labour such tables are also protected by copyright; photographs are copyrightable too. The catalogu” brochure is, therefore, a combination of different types of copyrightable subject matter, which is afforded protection under the Copyright Act, 1957. The question in this case is: Does the Catalogue/ Brochure of the plaintiff protected by the copyright Act, 1957. There is no reservation claim of copyright in the Catalogue/Brochure of the plaintiff in any of the recognised method, i.e., by a mark (C); or the expression “Copyright Reserved” or Copyright: Lamba Brothers (P) Ltd.; there is no such reservation the text in the brochure, the tables in the brochure or the photographs ill the brochure. I have brought to the counsel’s attention to the provisions of Press Registration Act Section 18(14) of the Press and Registration of Books Act, 1867, clearly states that particulars of all books printed in India have to be filled-in the “Catalogue of books”. Which has to contain particulars mentioned in Section 18, and under sub-section (14) the name and address of the proprietor of the copyright, or of any portion of such copyright has to be entered. As stated above, the particulars about the name of the author, or claims as to the whole or part of the copyrightable matter are not printed in the Catalogue/ Brochure in suit. Counsel for the plaintiff says that according to the Universal Copyright Convention revised at Paris in 1971,- Article Iii, protection is to be given to the catalogue subject matter of this suit. It is contended that it is of no consequence that claim to copyright is not made in or upon the Catalogue in suit. Article Iii of that Convention reads as under:- “Any Contracting State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notaries certificates, payment of fees or manufacture of publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol (C) accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright”. From the above, it is clear that the protection would be given reasonable notice of the following are to be found in the matter with regard to which copyright is claimed:- (1) name of the author, (2) year of publication, (3) symbol (C), accompanied by name of the author, (4) or there should be any other reasonable notice for claim of copy-right. Counsel points out that in the catalogue which is sought to be protected by this suit, there is mention that the machines are made by Lamba Brothers Pvt. Ltd., 6/10, Kirti Nagar Industrial Area, New Delhi – 110015, and that this should be sufficient compliance with sub-section (14) of Section 18 of Press and Registration of Books Act. I do not think that this. could be so, particularly in view of the fact that the name of the plaintiff is not accompanied by the symbol (C). No reasonable notice that the plaintiffs claim any copyright is visible in the catalogue. It has been asserted by the plaintiff that the creator/author of the catalogue was one Mr. S.K. Bassi, who was an employee of the plaintiff firm. This assertion that Mr. S.K. Bassi is the author and that he claims the copyright in the Catalogue/Brochure is nowhere slated in the Catalogue/Brochure. The plaintiff has also filed a certificate from this Mr. Bassi saying that he is one who created the catalogue and that be is also disclaiming any rights and interests in the catalogue. This certificate seems to be an after thought, and appears prima facie to be only for the purpose of sustaining this suit. Counsel also refers to judgment reported as 72 R.P.C. 89. In that case, the claim of copyright was made in the catalogue. That claim being supported by a claim to copyright in the catalogue itself, as set out at page 95, the said decision of Court of Appeal, (comprising the Master of the Rolls Sir Raymond Evershed, Jenkins and Hodson, Lord Justices) is distinguishable, and has no application to the facts of the present case, and of no assistance to the counsel. Another judgment relied upon by the plaintiff is Single Judge judgment reported as 41 R.P.C. 160. This case relates to a matter in which evidence had been recorded, and copyright in the catalogue established. I think that in view of the Copyright Act and in view of the Press and Registration of Books Act, 1867 and in view of Article Iii of Copyright Convention revised at Paris in 1971, in my view, it is essential that for copyright to exist, there must be compliance with the requirements of the statute and claim to copyright made upon the copyrightable matter before any action in copyright can be sustained, and perfected by statutory remedies. In this case, there is no claim for copyright in the brochure. This brochure is a single sheet of paper, having a number of folds. In my view, no copyright can be claimed on the basis of mere fact that there is some printed matter which has got words and sentences, photograph and tables but has no claim of the copyright. The submissions of the counsel regarding Berne Convention that there are no formalities required for claim to copyright is’ not acceptable, as when no claim has been recorded, and no claim of reservation of copyright in printed matter would amount to a disclaimer of copyright
(25) In my view there is no difference between a brochure in which a copyright is not claimed, and examination paper in which there is no claim of copyright. In addition to what is stated by me in Lamba Bros.Pvt. Ltd. case, it is necessary to note that in other jurisdictions, particularly as noted in Law of Copyright and Literary Property by Horace G. Ball at page 783, that copyright under the American Copyright Act, (which is an Act to amend and consolidate the Acts respecting copyright) copyright is ordinarily secured by printing and publishing a copyrightable work with a notice of claim in the form prescribed by the statute.
(26) The form and content of the question paper which is on record of this Court, is something which is registerable under section 18(14) of the Press and Registration of Books Act, 1867, and a claim of copyright is required to be registered there under.
(27) The copyright Act prescribes no form for claiming copyright, and does not make the registration obligatory. Section 17 of the Copyright Act postulates that the first owner of the copyright is the author, and section 19 of the Act says that the author can assign the copyright.
(28) The instant case being between two persons, neither of them can claim to be authors of the question paper or assignees of the copyright in the question papers in accordance with the law, in the present state of the matter on record, in my view, the instant plaint is liable to be rejected.
(29) In the present state of pleadings, and the material placed before me and on record, it is not possible to say that the Central Board of Secondary Education is the owner of the copyright in the question papers. It may be possible to do so when a properly framed suit is instituted, and the material is placed on record. Whatever material is placed on record, by application I.A.8649 of 1993, has since been taken back.
(30) The plaint of the instant suit, does not disclose any cause of action, and as such is liable to be rejected under Order Vii Rule 11 of the Code of Civil Procedure.
(31) The plaint is accordingly rejected.