Year 1958 and Government’s “Nadir-shahi Firman” Over Copyright Infringement!

Image from here
Image from here.

While glancing through some initial Indian copyright cases after independence, I chanced upon a quirky 1958 case from Allahabad High Court and thought of sharing it with our readers.

So, the year was 1958, a curious case came before the Allahabad High Court – J.N. Bhagga And Ors. vs State (AIR 1959 All 492). It was an appeal by the State of Uttar Pradesh (U.P.) against the order of the Additional District Magistrate Allahabad acquitting the respondents of the offense under the Indian Copyright Act III of 1914. The respondents owned a printing firm that published reprints of various Acts passed by the Central Legislature. For some strange reason, the State of U.P. seems to have taken offence to this, and objected to the publication of “bare texts of a number of Central Acts”! The government directed it to stop the sale/distribution of the publications, and surrender the profits made by the impugned act. 

The  fact that the government asked someone to stop printing copies of the legislative text is worth highlighting, and the Court would even go on to call it “deplorable that a firm of publishers, who were carrying on their lawful trade, should have been harassed by this patently misconceived prosecution.”

However, the cherry on top was that the government demanded an “unconditional apology” for the infringement of their copyright! Did copyright law provide any such remedy? Under which legal principle or rule, can an apology be sought for copyright infringement? None, the Court said. Luckily, the court and the case was quite clear, it was not an infringement and copyright law doesn’t provide any remedy to ask for an apology. In fact, as per the court order, there was a notification No. A-637 dated 22-11-1926 which apparently allowed this kind of printing, which was completely overlooked by the Appellants. So, calling this drolly demand, a “Nadir-shahi Firman”, the appeal was dismissed and the order of acquittal was upheld. Below are the paragraphs that piqued my interest:

“9. The contents of the notice served by the Government of India on the firm in 1952 deserve comment. It demanded, inter alia, that the firm should “apologise unconditionally to the Government for the infringement of their copyright.” The demand was backed by a threat that failure to comply with it would result in prosecution. I do not know of any provision of law under which the Government were entitled to demand an ‘unconditional apology’. This was not a case of libel, but of alleged infringement of copyright. Government, as owners of copyright, were entitled to the civil remedies enumerated under Section 6 of the Copyright Act as applicable to India.

They had asked for the stoppage of sale and distribution of the publication and demanded the surrender of all profits made by the firm from its sale. After this, there was as little justification for the humiliating demand for ‘unconditional apology’ as for, say, asking the partners of the firm to shave their heads in token of repentance. This part of the notice smells of Nadir-shahi Firman though dressed up as a notice according to law. It is deplorable that this fanciful demand should have emanated from the Law Department of the Government who are supposed to give a lead to the people in observing the spirit of the rule of the law.”

For a quick reference about Nadir Shah and his ‘firman’: Nadir Shah was an Iranian ruler who attacked India in the 17th century. Farman basically means a command, mandate or royal decree. While there is no specific term as “Nadir-shahi firman,” as far as I know and understand from the context (e.g. see here), they were known for their arbitrary and whimsical nature. Readers who may know better are invited to expand or correct, as required, in the comments below. . 

What makes this case more crispy (at least for me) is trying to fathom the reason behind the Government’s stand of demanding an unconditional apology for copyright infringement, especially considering the subject matter was the law! Does it not suggest some sensitivity about what copyright means to it? After all, isn’t an apology demanded or expected when someone’s dignity or reputation is damaged? Asking for an apology could perhaps mean a deep connection with copyright’s underlying justification for the state and its people. From a macro lens, it seems to carry an individualistic hue, something along the lines of – it was my creation and you used/copied it without my permission, so apologise to me. (A natural right theory type justification, if I may?) But I wonder how this stands in light of India’s stand during the Stockholm Revision Conference, 1967 where it can be said to be in lines of  “Copyright is for the Public” (e.g. see here). Of course, one can say that the State of UP’s approach is not India’s approach but still the underlying approach of the State is worth thinking through to understand the larger public consciousness around copyright at that time. Nonetheless, I intuit that some more important ideas can be teased out from this case, especially if others are aware of other such approaches by other states or even the central government. It would be interesting to know the thoughts of our readers on this.

Also, since we are talking about history and Stockholm Revision has been mentioned, I’d suggest you check, if you haven’t, this new series “Concocting History”, and read this intriguing post by Shivam Kaushik named “Oops! India fell into the Berne Convention.”

See you in the comments!

Thanks to Swaraj Barooah for his comments on the draft.

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