March is a remarkable month for history and literature buffs because of the whole “ Beware of the ides of March” thing. But IP nerds will specifically remember that eleven years ago, in March 2012, India’s first compulsory license was granted by the Indian Patent Office against Bayer’s Nexavar. One year later, in March 2013 the compulsory license order was upheld by the IPAB in a landmark ruling by the then Chairperson, Justice Prabha Sridevan. And now after 10 years from the IPAB order, Bombay High Court has granted perhaps India’s first license, under Section 32, to translate a literary work, from English to Marathi, in Anil G. Karkhanis v. Kirloskar Press and Another. A section 32 license allows the publication of a translated work after 7 years of first publication without the authorization of the author. (see more below). And what makes this case more interesting is that the subject matter of the ruling is a book based on an ardent follower of the Mahatma.
Background
The license was granted to one Mr. Anil G. Karkhanis (petitioner) who expressed his intent to produce and publish the translated version of Madeleine Slade (popularly known as Mira Behn)’s autobiography “The Spirit’s Pilgrimage” in Marathi. Originally authored in English, the work was first published in 1960 in India by Orient Longman Private Ltd. and in Great Britain by Longmans, Green & Co. The petitioner argued that despite best efforts, he was not able to locate any publishers and thus had approached the court to issue the license. Last year, by the directions of the court in October 2022, the Registrar of Copyright issued a notice to “any person claiming an interest in the copyright” of the work to submit an application along with evidence. Swaraj and I have previously discussed the facts of the present case here.
Now, via the present order, the court acknowledged that more than 120 days have passed since the publication of the notice and no objections have been raised by anyone. In light thereof, the court allowed and granted the license to the petitioner to translate the subject work in Marathi subject to the undertaking by the petitioner in its plaint and specifically noting that the “petitioner undertakes to deposit the Royalty in this Court, if and when any person raises a claim in that regard.”
Section 32 License for translation in the Copyright Act
Section 32 of the Copyright Act vests the appellate board (now the High Court) with the authority to issue a license to produce and publish a translation of a literary or dramatic work in any language after an elapse of seven years from the first publication of the work on the fulfillment of the certain conditions, without the permission of the author. Thus, the outcome is thus effectively a compulsory license. The court in pages 3-10 of the order has lucidly explained the fulfillment of these conditions in the present case. Apart from the procedural conditions regarding filing the application (Section 32(2), and paying the application fees (Section 32(3), the court considered the following –
- The time frame of 7 years from the date of publication of the work, within which an application for such a license cannot be entertained (Section 32(1)): In the present case the applicant argued that the book was published in 1960 and thus, 7 years have elapsed since its publication.
- The general absence of the translated version of the work (Section 32(4) proviso (a): The applicant argued that the author did not translate and publish the work in Marathi and the abridged version translated by Ranga Marathe and published in 1971 by Kirloskar Press is out of print.
- The owner of the work either denied the permission to translate the work or was not found even after the due diligence by the applicant (Section 32 (4) proviso (b) and proviso (c ) : The applicant submitted that he was not able to find the author nor her family members. He further submitted that the original publishers of the work (Orient Longmans Pvt. Ltd. (in India) and Longmans, Greens and Co. (Britain) have undergone restructuring where Pearsons Education group has taken over the Longman name globally. Upon writing to the Orient Blackswan Pvt. Ltd. he was informed that the group does not deal with autobiographies and is not connected to Longmans. With regard to the Pearsons Education group, he informed that no response was received from the same.
- The competency of the applicant to translate the work (Section 32 (4) proviso (d): The applicant submitted that he has been reading Marathi books since childhood and has a large collection of Marathi literature.
- The ability of the applicant to pay the royalty to the owner of the copyright (Section 32(4) proviso (d): The applicant submitted that he is an advocate with a good financial state to pay the royalties.
- Proposed retail price of the translated work (Section 32(2): The applicant proposed that the retail price of the translated book will be around INR 450/-. He specifically stated that he does not intend to publish more than 1000 paperback copies and considering that the prevailing rate of maximum royalty is 7.5% or 8% for most authors for paperbacks, he is willing to pay 8% royalty for the translated version making the total royalty payable at Rs. 36,000/- (8% X Rs. 450 per copies X 1000 copies).
In our post linked above, Swaraj and I highlighted that Section 31A and Section 32 could have been used in the present matter. However, Section 32 empowers the court to grant a license even when the author is found but denies permission to translate the work into another language.
One of the reasons cited by the applicant in the present case for seeking the license to translate the work is the larger “public interest” involved and considering the diverse set of languages spoken in the country, the order will surely enable the widespread reach of the work among the Marathi speaking population.
