By Adv. R. S. Agrawal 

 

THROUGH an order passed in the case – Anil G. Karkhanis v. Kirloskar Press and Another, on March 21, 2023, Justice Manish Pitale, at the Bombay High Court, has expressed conviction that grant of licence to the petitioner for translating autobiography of Mahatma Gandhi’s long time associate Madeleinen Slade also known as Mira Behn, in Marathi would indeed serve the interest of general public and thereby would satisfy the requirement of Rule 34(4) of the Copyright Rules, 2013. An Englishwoman Mira Behn was actively involved and had assisted Gandhi ji during India’s freedom struggle.

Through this Commercial Miscellaneous Petition, the petitioner had invoked section 32 of the Copyright Act, 1957 and Rule 32 of the Copyright Rules, 2013 for grant of licenc/e to produce and publish translation of the literary work titled “The Spirit’s Pilgrimage” in Marathi language and a further direction to the Registrar of Copyrights to notify such grant of licence in the Official Gazette and to post the same on the website of the office of the Registrar of Copyrights. On October 11, 2022, the HC had heard the counsel appearing for the petitioner and after being satisfied that a case was indeed made out for publication of appropriate notice as per Rule 33 of the Rules of 2013, it was directed that such a notice would be published by the respondent No. 2, the Registrar of Copyrights in respect of the prayers made in this petition. The format of the public notice was incorporated in paragraph 9 of the order and it was directed that additionally, the petitioner would ensure that such a notice is published in two newspapers -Free Press Journal and Loksatta (Marathi).

An affidavit of publication dated February 15, 2023 was placed on record along with the copies of publications to show that the order passed by the HC on October 11, 2022 was indeed complied with. The notices were published in Free Press Journal on October 30, 2022 and in Loksatta (Marathi) on November 9, 2022; and respondent- Registrar published the notice on October 26, 2022 on the official website. There is no dispute about the fact that a period of more than 120 days has passed after publication of these notices and no objection has been raised by any person. The HC has noted that in that light the petitioner’s counsel Amit Jamsandekar has pressed for grant of relief in terms of prayer clauses (a) and (b). At that stage, the counsel submitted that inadvertently, in prayer clause (a), reference was made to ‘Rule 38’ of the Copyright Rules instead of ‘Rule 32’ thereof. A prayer was, therefore, made for permission to suitably amend the said prayer clause. The High Court had granted the said request, in the interest of justice and the petitioner was permitted to amend the prayer clause (a)to replace the words ‘Rule 38’ with ‘Rule 32’.

The HC considered the petition and material on record. Section 32 of the said Act and Rule 32 of the said Rules set out specific requirements to be satisfied before such licence for translation can be granted. A perusal of the material on record shows that the stipulated requirements stand satisfied in this case. The book was first published in India in 1960, and therefore, 61 years have passed from the date of the first publication of the work, though under the law, requirement is seven years. The HC has noted that the petition contains the undertaking by the petitioner to deposit Rs 5,000/- as specified in the Second Schedule of the Copyright Rules with the Registrar of Copyrights, along with his application or any other such fee as may be prescribed.

The HC has also noted that the Original author Mira Behn, has not translated and published the work in Marathi or has not authorised any other person to do so within seven years from 1960, that is, the year of first publication of the book. An abridged version of the said work titled ‘Ek Chaitnya Yaatra’ was written by Ranga Marathe and was published by Kirloskar Press on October 2, 1971. The said version is since then out of print and not available to the public and the Publisher is not operational any more.

The petitioner wrote to the said publisher on the address given on the abridged translation, requesting licence to publish a Marathi translation of the Work on August 17, 2021 on the basis of the claim made by the said publisher on the work. The said letter was received back with the remark that the addressee left without instruction.

The Original author Mira Behn had left her home and family in 1920s to live and work with Mahatma Gandhi. She remained unmarried all her life and passed away in a small village in Austria in 1982. The petitioner was unable to contact her or any of her family members or heirs. It was also noted by the HC that the petitioner is financially sound condition to pay royalty, if need arises anytime, to do so.

It was also brought to the notice of the HC that the petitioner has given specific undertakings in paragraphs 4E and F in the context of Royalty payable to the rightful owner at the rate the HC may determine. He has undertaken to secure the royalty payable to the right owner, if any, by depositing the in the HC or in terms of the directions issued by the Court and he had also assured that he has sufficient means to pay the royalty payable to the right owner under section 323 of the Copyright Act. The HC has also noted that none has come forward to raise objections in response to the notices and more than 120 days have elapsed after their publication, it is convinced that the petition can be allowed by directing the petitioner to abide by the undertakings. The Court has specifically recorded that the petitioner undertakes to deposit the Royalty in the HC, if and when any person raises a claim in that regard.

Disposing of and allowing the petition, in terms of its directions, the Bombay High Court has granted liberty to any person interested in approaching this court in respect of the claim of Royalty arising from grant of such licence for translation of the Mira Behn’s book in Marathi.