OPINION
S.K Dubey, J.:— The following question arising in the case has been referred to the Full Bench:
“Whether, without registration under section 45 of the Copyright Act, 1957, Criminal prosecution for infringement of copyright is or is not maintainable.”
2. Respondent herein claims to be the author of the story entitled “Benam Rishte” said to have been published in the magazine Filmi Duniya in March 1985. He alleges that the two applicants herein have made a film by name “Naseeb Apna Apna” based on the story “Benam Rishte”. There was some delay in the initial proceedings for reasons which are not relevant at this stage, but ultimately the competent Court took cognizance and issued process to the two accused persons who are the present applicants. They have filed this petition under section 482, Criminal Procedure Code seeking to quash the proceedings. When the case was being heard by one of us (Bhat, C.J), relying on a decision of the Division Bench of this Court in Mishra Bandhu Karyalaya v. S. Koshal, 1970 MPLJ 475 : AIR 1970 MP 261, it was argued that registration of copyright is mandatory and without registration, the complainant has no copy right which can be said to have been infringed and the person who claims a copy right has no legal remedy against any such alleged infringement. The question was referred to the Full Bench and that is how the matter has come before us. We have heard Shri S.S Jha, Advocate for the applicants, Shri Rajendra Tiwari, Advocate with Shri I.K Dwivedi, Advocate for the respondent as also the learned Advocate General who assisted the Court.
3. In Mishra Bandhu Karyalaya's case, 1970 MPLJ 475 : AIR 1970 MP 261, this Court adverted to the provisions of the Copyright Act, 1957 (for short the Act) and came to the conclusion that registration was mandatory and without registration, no person can have a cause of action. We find that High Courts of Calcutta, Allahabad, Madras, Kerala and Patna have dissented from the view taken in Mishra Bandhu Karyalaya's case (See — Satsang v. Kiron Chandra, AIR 1972 Cal 533, Nav Sahitya Prakash v. Anand Kumar, AIR 1981 All. 200., M.C Productions v. A. Sundaresan, AIR 1976 Mad 22, R. Madhavan… v. S.K Nayar…., AIR 1988 Kerala 39, Radha Kishna v. State of Bihar, 1979 Cri. L.J 757. The High Court of Orissa has taken a view in support of the view taken in Mishra Bandhu Karyalaya's case — See Brundaban Sahu v. Rajendra Subudhi, AIR 1986 Ori. 210.
4. We may in this connection refer to a decision of Andhra Pradesh High Court in Errabhadera Rao v. B.N Sarma, AIR 1960 AP 415, where it considered the provisions of Hyderabad Copyright Act, 1934 containing a specific provision that there can be no legal remedy against infringement of copyright without registration of the copyright. It was held that without registration there could be no cause of action. We may also advert to the provisions of the Trade and Merchandise Marks Act, 1958 relating to trade marks. The Act contemplates registration of trade marks. Section 27 specifically declares that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Reference may also be made to section 69 of the Indian Partnership Act, 1932 which specifically bars institution of a suit to enforce right arising from a contract under the Act on behalf of any person suing as a partner in the firm, against the firm or any person alleged to be or to have been a partner of the firm unless the firm is registered.
5. The Act was enacted replacing the Indian Copyright Act, 1914 and the Copyright Act of 1911 passed by the Parliament of United Kingdom as modified in its application in India in Copyright Act, 1914. As the law stood before the Act, there was no statutory provision for registration of copyright and therefore, the question of non-registration affecting legal remedy did not arise.
6. Chapter III of the Act deals with Copyright. Section 14 explains the meaning of copyright. Section 15 enumerates the ‘works’ in which copyright subsists throughout India. Section 16 declares that no person shall be entitled to copyright or any similar right in any work, published or unpublished, otherwise than under and in accordance with the provisions of the Act or any other law in force. Chapter IV deals with ownership of copyright and the right of the owners. According to section 17, the author of a work shall be the first owner of the copyright therein, subject to the provisions of the Act and subject to various provisos contained in this section. The other rights of the owner of a copyright are dealt with in other provisions in the Chapter. The term of copyright is dealt with in Chapter V. Licence for owners of copyright is dealt with in Chapter VI. Chapter X relates to registration of copyright. Section 44 requires register of copyrights to be maintained in copy-right Office. The names of titles of works, names and addresses of authors, publishers and owners of copy-right and other prescribed particulars may be entered in the register.
7. Section 45 of the Act reads as follows:
“45. Entries in Register of Copyright. — (1) The author or publisher of, or the owner of or other person interested in the copyright in, any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for entering particulars of the work in the Register of Copyrights.
Provided that in respect of an artistic work which is used or is capable of being used in relation to any goods, the application shall include a statement to that effect and shall be accompanied by a certificate from the Registrar of Trade Marks referred to in section 4 of the Trade and Merchandise Marks Act, 1958 (43 of 1958), to the effect that no trade mark identical with or deceptively similar to such artistic work has been registered under that Act in the name of, or that no application has been made under that Act for such registration by any person other than the applicant.
(2) On receipt of an application in respect of any work under sub-section (1), the Registrar of Copyrights may, after holding such inquiry as he may deem fit, enter the particulars of the work in the Register of Copyrights.”
Section 48 declares that the Registers of Copyrights shall be prima facie evidence of the particulars entered therein and certified copies of the entries shall be admissible in evidence in all Courts without further proof or production of original. Section 51 declares when copyright can be said to have been infringed. Chapter XII deals with civil remedies. Chapter XIII deals with criminal offences. According to section 63, any person who knowingly infringes or abets the infringement of the copyright in a work, or any other right conferred by Act (except the rights referred to in section 52) shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakhs rupees.
8. A careful analysis of the Scheme and the provisions of the Act does not disclose any legislative intention to make registration of copyright mandatory or to take away civil or criminal remedies in the event of non-registration of copyright. On the other hand, some of the provisions point a contrary conclusion. Copyright is the exclusive right, subject to the provisions of the Act, to do and authorise the doing of any of the acts enumerated in section 14 in respect of a work or a substantial part thereof. The first owner of the copyright shall be the author of the work. In other words, the ownership of the copyright is a logical consequence of the authorship. Copyright does not arise from registration of copyright. Provision regarding registration and maintenance of register is basically a provision to enable entries to be made in respect of relevant particulars including the names of owners of copyright. Unless there is an existing copyright and a person is the owner of a copyright, the question of applying for or making entries in the register of copyrights does not arise. Registration follows the copyright and not vice-versa. Certified copies of entries in the register are only prima facie evidence without further proof and they are not conclusive. A copyright when it is propounded or challenged has to be duly established in a competent Court. There is no specific provision as in the Trade and Merchandise Marks Act or the Indian Partnership Act barring institution of legal proceedings in the absence of registration. Having regard to all these circumstances, it has to be held that registration is not mandatory and for breach of copyright, civil or criminal remedy can be resorted to without registration.
9. In Mishra Bandhu Karyalaya's case, the Division Bench of this Court was concerned with the State of affairs governed by the Copyright Act, 1914 which did not contain any provision for registration. Therefore, the question of registration being mandatory or not did not arise for consideration. Their Lordships of the Division Bench in passing adverted to the provisions of Copyright Act, 1957 and indicated that registration is mandatory and legal proceedings cannot be initiated in absence of registration. The observations were unnecessary for the disposal of the case under consideration and are clearly ‘obiter dicta’. The decision also does not rest on any specific statutory provision or any recognised principle of law. With great respect, we hold that Mishra Bandhu Karyalaya's case, 1970 MPLJ 475 : AIR 1970 MP 261, does not lay down correct law; so also the decision in Btundaban Sahu's case, AIR 1986 Ori. 210. With respect we agree with the view taken by the High Court of Calcutta, Allahabad, Madras, Kerala and Patna. Delhi High Court has taken a similar view in Glaxo Operations UK Ltd. v. Samrat Pharmaceuticals, AIR 1984 Delhi 265.
10. We answer the question by holding that criminal prosecution for infringement of copyright is sustainable without registration under section 45 of the Act. The case will go back to the Single Judge for disposal. Registry shall post the case for hearing without any further delay.
Reference answered accordingly.