NARAYANA PAI, CJ. ( 1 ) THE plaintiffs in O. L. C. S. No. 1 of 1958 on the file Of the District court at Dharwar are the appellants in this appeal. They are a firm of partners called Janata Pictures, doing business at Dharwar of exhibitors and distributors of cinematograph films. Under a document marked Ex. 57 in the case dated 24th October 1953, they secured the rights of exhibition distribution and exploitation of a Hindi talkie film called Nagapanchami in the territory called the Karnatak territory comprising the districts of Belgaum, Dharwar, Bijapur and North Kanara. The producer of the said film is the 4th defendant, Vinod Films, of which the sole proprietor is Vinod C. Desai. He had assigned to the 3rd defendant Chandra Film distributors, whose proprietor is a brother of his by name C. C. Desai, the distribution rights in Respect of what is called the Bombay Circuit , which includes the Karnatak area mentioned above. They commenced screening the film shortly thereafter and continued to do so till about January 1956. ( 2 ) ON or about the 13th of January 1956, the 2nd defendant, Srinivas pictures, started exhibiting a Kannada talkie film called Adarsha Sati at dharwar, produced by the 1st defendant A. V. M. Productions and the distribution rights of which are said to belong to defendant 1-A, a private limited company called the A. V. M. Ltd. The plaintiffs stated that they wrote a letter (original of Ext. 60) dated 6th February 1956 to the 1st defendant with a copy to the 4th defendant, but received no reply. On 30th july, 1956, they wrote a post registered letter, Ex. 61, repeating their complaint in the previous letter that the exhibition of the Kannada talkie film adarsha Sati is an infringement of their rights in respect of 'nagapanchami. The 1st defendant in his reply Ex. 62 dated 2nd August 1956 repudiated the claim. On 17th August 1957 they issued a notice through ' a lawyer to the 1st defendant (Ex. 63), to which no reply was received. The suit was filed on 4th June 1958 in which they complained that the exhibition of the Kannada talkie film Adarsha Sati constituted an infringement of their rights in respect of the Hindi talkie film Nagapancami acquired under Ex. 63), to which no reply was received. The suit was filed on 4th June 1958 in which they complained that the exhibition of the Kannada talkie film Adarsha Sati constituted an infringement of their rights in respect of the Hindi talkie film Nagapancami acquired under Ex. 57 and prayed for a decree granting an injunction restraining the defendants from exhibiting the said Kannada film Adarsha sati, together with incidental reliefs like surrendering the prints, rendering an account, etc. ( 3 ) BESIDES raising minor pleas, such as the plaintiffs' firm is not registered under the Partnership Act, and one of the partners as Manager of a picture house in Dharwar has himself been responsible for the exhibition at the said Picture House of the offending film Adarsha Sati, both of which are decided against the defendants and are not repeated before us the principal defence of Defendants 1, 1-A and 2 was that there was no infringement at all of any rights of the plaintiffs. Defendants 3 and 4 have remained ex parte both in the trial Court and in this appeal also. The 4th defendant Vinod C. Desai, however, as the only witness for the defendants examined on commission has deposed that under a deed of assignment, Ex. 123 dated 23rd June 1964, he has assigned to the 1st defendant his entire copyright in respect of the Hindi film Nagapanchami, limited to its Tamil, Telugu and Kannada film versions. ( 4 ) THE trial Court has upheld the defendants' plea that no rights of the plaintiffs in respect of the Hindi talkie film Nagapanchami have been infringed by the defendants exhibiting in Karnatak area the Kannada talkie film called Adarsha Sati and dismissed the suit. Hence this appeal. ( 5 ) IN the plaint the plaintiffs have also alleged that a Telugu film called nagalu Chouti similarly constituted an infringement of their rights; but the apprehension on the likelihood of its being exhibited in Karnatak area stated in the plaint has not materialised, nor is there any evidence of the same having been so exhibited. We shall not therefore make any reference to Nagalu Chouti but contine our attention to Nagapanchami and Adarsha Sati. We shall not therefore make any reference to Nagalu Chouti but contine our attention to Nagapanchami and Adarsha Sati. ( 6 ) THOUGH the matter has been elaborately argued before us with great attention to details and reference to decided cases, the consideration thereof is clearly relatable to three questions: - (1) What are the rights acquired by the plaintiffs under Ex. 57 in respect of the Hindi talkie film Nagapanchami? (2) What would constitute an infringement of those rights? ' and (3) Do the plaintiffs prove any such infringement by reason of the exhibition of the Kannada talkie film Adarsha Sati in Karnatak area? ( 7 ) WE may start 'with the admission that the original copyright with all its incidents and subsidiary rights belongs to or vests in the 4th defendant, the producer of the film, and that the 3rd defendant has the distribution right in respect of it so far as what is called the Bombay Circuit is concerned. ( 8 ) THOUGH it was not clearly admitted in the first instance, it is proved by the evidence and is no longer disputable that the story of the film was not the original conception or creation of the 4th defendant. It is an adaptation of a story of one Sati Bohula published in January 1948 issue of a Hindi Journal called Kalyan in Ghorakpur, a copy whereof is produced as Ex. 56. Whether it is a Pouranik or mythological story or one from the epics or Puranas or not, there is no doubt and it is common ground -that it may be regarded as a part of the folklore of the country and is of ancient origin. Hence, it is clear that'so far as the story itself is concerned or the characters or names of characters therein are concerned, no one can claim any copyright. As we shall point out later on copyright, if any, even of the original producer the 4th defendant would be limited to his labour and originality in the matter of adapting the story to a cinematographic production thereof. ( 9 ) THE trial Court proceeded on the footing that because the alleged infringement commenced before the Copyright Act of 1957 was enacted this case would be governed by the Copyright Act of 1914 which adopted with some modifications the English Copyright Act of 1911. ( 9 ) THE trial Court proceeded on the footing that because the alleged infringement commenced before the Copyright Act of 1957 was enacted this case would be governed by the Copyright Act of 1914 which adopted with some modifications the English Copyright Act of 1911. But from the point 'of view of the principles applicable to the facts and circumstances of this case, there is not, in our opinion, any appreciable difference between the operation of the two Acts. ( 10 ) THE definition of copyright in S. 14 of the Act of 1957 is only a restatement in more elaborate form of the definition of copyright contained in sub-sec. ' (2) of P 1 of the English Act of 1911, adopted in India For a fuller understanding of the position, we copy below the entire sub-sec. ( 10 ) THE definition of copyright in S. 14 of the Act of 1957 is only a restatement in more elaborate form of the definition of copyright contained in sub-sec. ' (2) of P 1 of the English Act of 1911, adopted in India For a fuller understanding of the position, we copy below the entire sub-sec. (1) of S. 14 of the 1957 Act: - (1) For the purposes of this Act, 'copyright' means the exclusive right, by virtue of and subject to the provisions of, this Act,- (a) in the case of a literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely: - (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to perform the work in public (iv) to produce, reproduce, perform or publish any translation of the work; (v) to make any cinematograph film or a record in respect of the work; (vi) to communicate the work by radio-diffusion or to communicate to the public by a loud-speaker or any other similar instrument the radio diffusion of the work; (vii) to make any adaptation of the work; (viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi) (b) in the case of an artistic work to do or authorise the doing of any of the following acts, namely,- (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to include the work in any cinematograph film; (iv) to ma'ke any adaptation of the work; (v) to do in relation to an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (iii) (c) in the case of a cinematograph film, to do or authorise ,the doing of any of the following acts, namely:- (i) to make a copy of the film (ii) to cause the Mm, in so far as it csonsists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public (iii) to make any record embodying the recording in any part of the sound track "associated with the film by utilising such sound track; (iv) to communicate the film -by radio-diffusion; (d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely- (i) to make any other record embodying the same recording; (ii) to cause the recording embodied in the record to be heard in public; (iii) to communicate the recording embodied in the record by radio-diffusion. Both according to S. 5 of the English Act of 1911 and S. 17 of the Indian act of 1957, subject to the provisions of the relevant Act, the author of a work shall be the first owner of the copyright therein. Both according to sub-sec. (2) of S. 5 of the English Act of 1911 and S. 18 of the Indian Act of 1957, the owner of a copyright may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof. S. 1. 9 expressly states that no assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent. ( 11 ) THE position therefore is that whereas all the rights comprised in what is compendiously called the copyright vest in the original owner, it is open to him to assign either the whole of it or only a part of it and subject the assignment to such conditions and limitations as he thinks fit, provided however the assignment is given effect to in writing signed by him or his duly authorised agent. ( 12 ) TO complete the picture, we should go to sub-sec. (2) of S. 18 of the 1957 Act which reads as follows:-" (2) Where the assignee of a copyright becomes entitled to any right comprised in the copy right the assignee as respects the rights so assigned, and the assignor as respects the rights so assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly. ( 13 ) WE may now come to Ex. 57 on which the plaintiffs rely as the source of their title or their rights. . It is'in the form of a letter addressed to the plaintiffs by the 3rd defendant in which, after referring to a certain personal talk, the understanding between the parties is put on record, the material portions of which, viz. 57 on which the plaintiffs rely as the source of their title or their rights. . It is'in the form of a letter addressed to the plaintiffs by the 3rd defendant in which, after referring to a certain personal talk, the understanding between the parties is put on record, the material portions of which, viz. the reference and paragraphs 1 and 4, read as follows: -"outright sale of the Exhibition "and Exploitation Right of the picture 'nagapanchami' for the territory commonly known as Karnatak circuit in the film trade, i. e. , the districts of Belgaum, Dharwar, Bijapur and Karwar only as on this day. 1. That we agree and undertake to give the rights of exhibition, distribution and exploitation of our above picture and you have agreed to take the said rights from us on settled price of Rs. 16,061 (Rupees sixteen Thousand and one) only for the territory as aforesaid which amount to be paid by you in the following manner: - "rs. 6000 on signing the contract; rs. 10001 against publicity materials and prints. Rs. 16001 total: Rs. Sixteen thousand and one only. 4. That you shall not exhibit or cause to be exhibited the film either directly or indirectly outside your specified territory. In default, you shall indemnify us against all losses damages or consequences. Similarly we shall not distribute or cause to be distribtted the said picture in your territory to any party or parties other than yourselves. In default, we shall indemnify you against all losses, damages or consequences. " at the foot of the letter the plaintiffs have signed under the text- "we confirm the above arrangement in to to and the 4th defendant has also signed under the text- "we confirm the above arrangements. " ( 14 ) PRIMA facie, what is given or assigned to the plaintiffs is only the right of exhibition and distribution; the word 'exploitation' which conveys the same idea adds nothing to the quantum of the rights. ( 15 ) ONE of the questions discussed before us was whether the document ex. 57 conferred only a licence on the plaintiffs or amounted" to an assignment of at least some of the rights comprised in the comprehensive copyright of the 4th defendant. ( 15 ) ONE of the questions discussed before us was whether the document ex. 57 conferred only a licence on the plaintiffs or amounted" to an assignment of at least some of the rights comprised in the comprehensive copyright of the 4th defendant. ( 16 ) A licence conveys nothing but is only in the nature of a dispensation which makes a certain act, which would otherwise be unlawful without it, lawful on account of its conferment on the person so acting. As pointed out in S. 758 at pages 414-415 of the 8th Volume of 3rd Edition of halsbury's Lawn of England, it is often difficult to distinguish between a sole and exclusive licence and an assignment of copyright. Where the agreement between the author and the other party contains no express terms as to copyright, if the consideration is payment to the author of royalties or a share of the profits, instead of a sum of money paid down, the inference is that the copyright is not assigned but only a sole and exclusive licence. But where the author, in consideration of a sum of money paid to him, agrees with the publisher that the latter shall have the sole right of printing, reprinting and publishing a book without any limitation as to time, it might even be construed as an assignment of a copyright, and a grant of the sole and exclusive right of performing a play may be an assignment of the performing right in the play although the grant is limited as to area and is made in consideration of royalty and although the parties are described as licensor and licensee. In Nessager v. Brutish Broadcasting company Ltd. 1929 AC. 151 an agreement describing the parties as licensors and licensees, under which the licensors granted to the licensees the sole and excrusive right of representing and performing a certain play in specified area but retained, the copyright in respect of music to the licensors with liberty, to use the English lyrics for sale with music and in the event of ' non-production by the licensees within three months, all rights of representation were to revert to and become again the absolute property of the licensors, was interpreted as an assignment notwithstanding the fact that the parties were described as licensors and licensees. This case as well as the case of Judges Musical Corporation (1907) 1 Ch. D. 651. were referred to and discussed in William Butler Yeats-Eric Dickinson AIR. 1938 Lah. 173. , while interpreting a certain agreement between Yeats and Macmillan Company. On the language of the agreement therein concerned, the Court held that what was transferred was only the publishing right but that the copyright in the poems in question remained with poet Mr. Yeats. ( 17 ) THE matter therefore ultimately is one of trying to interpret the document in question which means ascertaining the intention of the parties ( 18 ) THE language of Ex. 57, the material portions of which we have already copied, does clearly suggest an assignment of rights described as the rights of exhibition, distribution and exploitation of the picture Nagapanchami within the districts of Belgaum, Dharwar, Bijapur and North kanara. As the transferor of the said rights is undoubtedly the 3rd defendant who admittedly had only the rights of distribution which right perhaps includes what are described as the rights of distribution and exploitation the said words set the limit to the rights acquired by the plaintiffs. We do not agree with the contention that simply because the 4th defendant has also signed stating that he confirms the arrangement, anything more was transferred to or acquired by the plainttiffs. Indeed, at a later stage of the arguments on behalf of the appellants, the emphasis always was on the contention that the plaintiffs have acquired what is called the performance right within the Karnatak area in respect of the Hindi talkie film Nagapanchami. ( 19 ) AS the transfer of copyright, which would mean transfer of any subsidiary right included within the comprehensive right called the copyright can be legally and effectively made only in writing, what could be held to have been transferred is only what has been expressly stated in wilting and nothing more. Every other right included within the larger right of copyright therefore still remains with the 4th defendant. ( 20 ) THAT, of course, does not mean that any of the defendants can deny to the plaintiffs the benefit of sub-sec. Every other right included within the larger right of copyright therefore still remains with the 4th defendant. ( 20 ) THAT, of course, does not mean that any of the defendants can deny to the plaintiffs the benefit of sub-sec. (2) of S. 18 of the 1957 Act, which states the well established principle that, as respects the rights actually assigned, the assignee shall be treated for purposes of the Act as the owner of the copyright; that is to say, he should be regarded as the owner of such of the rights comprised in the copyright as have been actually assigned to him, and can therefore take steps to protect any infringement of those rights. ( 21 ) THE cases reported in British Actorsfilm Company Ltd. v. Glover (1918) 1 KB. 299. and Falcon v. Famous Players Film Company (1926) 1 KB. 396, the latter of which was affirmed on appeal in Falcon v. Famous Players Film Coy. (1926) 2 KB. 474 are instances where an assignee of the performance right was held to be entitled to take action to prevent infringement. But, upon facts it should bs noted that, in all these cases, infringement consisted in the preparation of a film of the identical play, the performance right in respect of which had been assigned to the plaintiff, and the exhibition of the film through the defendant in the same locality as the one in which the plaintiff had been granted the performance right in respect of the play. There was therefore identity of material amounting to actual reproduction and identity of territory so far as exhibition is concerned. ( 22 ) THE next question is whether there is any such identity or substantial identity between the Hindi picture Nagapanchami and the Kannada picture adarsha Sathi as to entitle the plaintiff to say that the exhibition of the latter in Karnatak area amounts to the infringement of his right to exhibition in respect of the former in the same area acquired by him under Exbt. 57. This is a matter not so much of law as of evidence. 57. This is a matter not so much of law as of evidence. ( 23 ) WE may at once exclude from consideration the evidence of plaintiff 2 Shivram Triyambak Kulkarni (P. W. 2) and of one Venkatrao Annarao mudholkar (P. W. 3) in which an attempt has been made to show that defendant 1 sought to secure from plaintiff 2 or the plaintiff's firm a print of Nagapanchami with a view to copy it for the preparation of Adarsha sathi. These witnesses speak to two letters-Exbts. 96 and"97 dated 23 january 1955 and 9 February 1955 respectively written by PW. 3 to PW. 2. Except that Exbt. 97 contains a sentence reading,-'you did not "inform me about Nagapanchami print I had phoned you there is scarcely any reference to the alleged attempts of defendant 1 to secure a print of the said film. Apart from the improbability of any such attempt made in 1955 when the indications in the evidence are that the production of Adarsha Sati must have commenced some time in the year 1954, the evidence appears to us to bs so artificial that scarcely any value can be attached to it. ( 24 ) ON the question of infringement, apart from the brief circumstances spoken to by PWs. 4 and 5 to which we shall. refer later, the substantial evidence is that of plaintiff 1 Gururajacharya Krishnacharya Pandurangi (PW. 1 ). His evidence in one sense is an elaboration of the various points of similarity between the two films set out in the plaint which, according to the plaintiffs, constitute infringement. In paragraph 7 of his deposition he makes a categorical statement that Adarsha Sathi is a copy of Nagapanchami and such ccopying is seen in the story, names of characters musical tunes, scenes, sequences and dances. In paragraph 8 he mentions two or three songs in the two films which according to him are set to same tunes. In paragraph 9 he makes a similar reference to similarity of two dances. In paragraph 10 he gives a long list of scenes which according to him are similar in both the films. In paragraph 11 he states: - "so far as the plot is concerned, some additions are made in adarsha Sati. Excepting these additions, the other parts are exactly similar. The addition in Adarsha Sati is the bringing in the character of Narada. In paragraph 11 he states: - "so far as the plot is concerned, some additions are made in adarsha Sati. Excepting these additions, the other parts are exactly similar. The addition in Adarsha Sati is the bringing in the character of Narada. In Adarsha Sati more scenes of suffering of Vipula are added. Some more scenes are also added to emphasise her character as pativrata. Both these additions are made in order to make the picture longer to suit the taste of the old Mysore public and also to justify the title Adarsha Sati. In cross examination he admits that the story of Sati Behula is a puranic story or an ancient story. He also confesses that he has no special knowledge or training either in music or in danced ( 25 ) PW. 4 Arvind Ramachandra Gajendragadkar who was an Assistant producer of music at the Dharwar Station of the All India Radio deposed that he heard gramaphone records of two songs from Nagapanchami and two songs of Adarsha Sati played to him and found that the tunes" were the same. He has not seen either of the films. He admitted that the tunes are common popular ones and had been sung even by Balagangadhara a popular actor of the Marathi stage several years ago. ( 26 ) P. W. 5 who saw Nagapanchami once in about the year 1954, i. e. , twelve years before he gave evidence, and Adarsha Sati some time later deposed that there was a lot of similarity in the said film in the matter of story, characters, dialogues, scenes, settings, dances, songs etc. He even said that the songs in Adarsha Sati were translations of the songs of Nagapanchami which does not appear to be even the plaintiff's case. The evidence of PW. 5 is, in our opinion too vague to be of any value. The evidence of PW. 4 as to the similarity of tunes loses much of its value from the point of view of the plaintiff's case because of his statement that the tunes are popular ones and have been popular for a number of years. ( 27 ) THE bulk of the evidence of plaintiff 1 as PW. 1 is made up of a marration of similarities in story, characters and events in the story. ( 27 ) THE bulk of the evidence of plaintiff 1 as PW. 1 is made up of a marration of similarities in story, characters and events in the story. As we have already stated, the story is taken from the ancient folklore in respect of which nobody can claim any copyright. When such ancient stories are taken by two different persons for any work of theirs, whether literary, dramatic or artistic, identity of names, similarity of events and probably also in the matter of. some striking statements of important characters is inevitable. When those similarities are traceable to a common source. they cannot in our opinion, be regarded as relevant at all to the question whether there is any infringement of the copyright of one by the other. The matter has been explained in the following terms by the Judicial committee of the Privy Council in England in two cases reported in macmillan and Co. v. K. and. J. Cooper AIR. 1924 PC. 75 and Deeks v. Wells AIR. 1933 PC. 26 In the earlier case, quoting from Sir Arthur Wilson J. in Macmillan v. Suresh chunder Deb ILR. 17 Cal. 951. their Lordships say- in the case of works not original in the proper sense of. the term, but composed of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from any one else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But, as the law is concisely stated by Hall, V. C. in Hogg v. Scott (L. R. 18 Eq. 444) 'the true principle in all these cases is, that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man's labour, or, in other words, his property. In the latter case, their Lordships stated at p. 29 of the report- "the suggested similarities can be explained by the nature of the work, which has common elements, and by the fact that both writers must have had recourse to authorities which were common to both. After all, neither Miss Decks nor Mr. In the latter case, their Lordships stated at p. 29 of the report- "the suggested similarities can be explained by the nature of the work, which has common elements, and by the fact that both writers must have had recourse to authorities which were common to both. After all, neither Miss Decks nor Mr. Wells was present at the beginning of the world or until a very considerable time later, and they have had to rely upon the accumulation of information which has been made by many authors before them and to which they have had to have recourse in writing such a work as this. Their Lordships do not pause to deal with the details of the evidence that was given but in a great many cases it is quite properly described by one of the Judges as fantastic, and such actual coincidences as do exist are quite explicable, and should be explained, in the manner suggested. ( 28 ) NOW, do we have anything in the long deposition of plaintiff 1 except a list of similarities all of which go to make up nothing more than the story traceable to the story of Sati Behula published in January 1948 by the Hindi Journal Kalyan? If the cumulative effect of all these similarities amounts to nothing more than saying that the story is the same, then no question of copyright arises because, the story is nobody's property. It is an ancient story derived either from the Puranas or mere folklore. ( 29 ) TO make out that there is something particularly and peculiarly relatable to the special labour or originality of defendant 4 substantial copying of which may, to the extent of exhibition or performance within karnatak area, enable the plaintiff to go to Court complaining of infringement, something more substantial and more convincing than mere similarities spoken to by PW. 1 is necessary. We have no such material on record. ( 30 ) IT is seen from the order sheet of the trial Court that the plaintiff did make an application for permission to, exhibit the two films before the trial Judge so that he may form his opinion on the question of alleged infringement and the Court did pass an order on 5th October 1967 fixing the 11th and 12th of November 1967 for the screening of the two films. On 10th november 1967, the plaintiff's Advocate filed a memo stating that he had been unable to make any arrangements for screening the film and asking for another date. On 30th November 1967 such other date was fixed at 17th december 1967. On 18th December 1967, further dates were fixed for screening the films, viz. , 13th and 14th of January 1968. As the Judge went on leave, the screening was not arranged on those dates. Thereafter, though the matter was adjourned from time to time, no attempt was made by the plaintiff to screen the films. ( 31 ) THE result is that there is no material whatever on record on the basis of which the Court could have come to any definite conclusion on the plaintiff's case of alleged infringement. The material already on record as discussed above, is quite inadequate to lend any support to the plaintiff's claim. ( 32 ) IN this view, we find it unnecessary to 'discuss the question whether the difference in language makes a difference to the examination of the case of alleged infringement of the question whether an adaptation involving or including translation makes any such difference and if so in what manner. ( 33 ) WE have also pointed out earlier in this judgment that though the defendants started screening the film Adarsha Sati at Dharwar from 13th January 1956, the plaintiffs waited till 4th June 1958 to file the suit, nearly two years after they had received defendant 1's reply to their second ' notice repudiating their claim, and about a year after their Lawyer's notice. ( 34 ) THE appeal is therefore dismissed with costs. --- *** --- .