By Vijitha Yapa
Can a person who does not know how to write be the copyright-holding author of a book on a subject of which he is an expert? The person concerned is Publis, a culinary expert who works at Mount Lavinia Hotel. His name is recognised as an expert on Sri Lankan food.
When he decided to put his recipes and the story of his life into a book he asked a friendly journalist, Dharma Samaranayake, to take down the details, edit it and give it to him so that it could be published as a book by Sarasavi Publishers. She was paid Rs 25,000 for her services by the publisher on the instructions of Publis and is acknowledged as the editor in the book , published in 2005. In the credits page it was stated clearl y that Publis was the copyright holder with the copyright symbol ©.
Three years later, in 2008, after the publication of six editions of the popular book, Dharma Samaranayake suddenly awoke like Rip Van Winkle and claimed royalty from Sarasavi Publishers saying that she was the actual copyright holder. When the publisher refused and said the royalty had been paid to Publis, the copyright holder, she sought legal help and a case was filed in the Commercial High Court. The publisher Sarasavi was named as the defendant.
The key royalty figure in the case was Publis who was not named and summoned as a witness by either the editor or the publisher. One reason why the publisher was reluctant to put Publis as a witness may have been because the author could not write. They may have felt that putting him in the witness box would give an opportunity for the petitioner to highlight his inability to write and tear him to pieces. Publis was a humble self-made man whose first assignment at Mount Lavinia Hotel was as a helper in the kitchen carrying coal to the hearth. He rose through his determination, to become a director of the Hotel and served even as a cook for the Governor General
Dharma claimed that it was she who compiled the material personally through interviews with Publis Silva and others and that she was the copyright owner of the said book. She claimed that Publis had tested out the recipes she provided and that it was she who asked Sarasavi to publish the book. But she admitted she had no formal agreement and acknowledged that she received a sum of Rs 25,000 as an advance payment. Sarasavi said they recognised Publis as the copyright holder and had paid him royalty and paid Dharma Rs 25,000 as editorial fees on the instructions of Publis.
She said that Sarasavi had published six editions of the book without her expressed or implied consent and demanded royalty. Sarasavi said that they had entered into an agreement with copyright holder Publis Silva for the publication of the book and that they had paid him.
She pointed out that Publis Silva cannot write and had not written a single word of the said book. She claimed that she is the author of the book and the publishing company had failed to pay her royalty and thus infringed on her economic rights. She went to Court in 2008 and asked for injunctive relief, royalty and compensation under section 170 (10) of the Intellectual Property Act No. 36 of 2003 and for an enjoining order and injunction against the publication, distribution and sale of the book. Sarasavi filed objections and said that Publis Silva was the creator of the book and the copyright is with him and royalty was paid to him.
The judgment was given five years later on May 17, 2013. The Commercial High Court Judge recognised the plaintiff Dharma Samaranayake as the author of the book titled “(Galkissa Hotalaye Publis Silvage Hela Ratavata Ivum Pivum” and asked the defendant Sarasavi Publishers to pay a sum of Rs 837,500 as copyright fees and damages for infringement of her economic rights.
The court also issued a permanent injunction preventing Sarasavi from publishing, distributing, possessing and sale of the book.
Sarasavi appealed against the judgment to the Supreme Court and the case was heard by a three-member bench consisting of Justices Murdu M.B. Fernando, P.C., P. Padman Surasena, and AHMD Nawaz.
Justice Fernando said that prior to examining the Commercial Court Judgment she wished to consider the copyright regime in Sri Lanka with a brief overview of what is copyright. The Judge said copyright consists of multiple rights and that it is a bundle of different rights that springs from the ‘works’. These rights can be assigned as a ‘licence’ either as a whole or separately and independently by the owner of the copyright. But “there is no copyright in ideas and subsists only in the material forms in which the ideas are expressed. This gives rise to the idea-expression dichotomy”. In order to secure copy protection, the author must bestow upon the ‘work’ sufficient ‘judgement skill and labour or capital’ or ‘sweat of the brow’ as certain jurisdictions refer to the text. The precise amount of ‘judgement/knowledge or skill and labour’ that is required in order to acquire copyright cannot be defined in explicit terms. It depends on the speciality and facts of each case and is very much a subjective test.”
The Commercial Court’s decision that Dharma was the copyright holder may have been mainly influenced by Sarasavi Publishers failing to call Publis Silva “as a witness to substantiate its contention that the reproduction rights of the work was assigned” to them by Publis and failing to rebut that the ‘work’ was the plaintiff’s own creation. But the Supreme Court also said that the case should have been against Publis and not the Publisher and it was the responsibility of the claimant to have summoned Publis.
The Supreme Court held that “the learned judge did not consider as relevant the facts and assertions made by the plaintiff in the ‘work’. The Commercial Court Judge after hearing the case did not look at all the facts presented by the publisher to show that Publis was the author and the copyright holder. Finally he decided to award a 10% copyright fee to be paid to the editor. If the editor was to be given 10% of the proceeds of the book, no figure or percentage was recognised by the Judge as being worthy of being awarded to Publis.
The Judge had also not taken into account the ‘editor’s note’ penned by the plaintiff in the book . stating the ‘true owner of the book is Publis Silva’ and that ‘she (the plaintiff) is penning a few words only as the editor’.
The Supreme Court says that “In order to establish ‘creativity’ and ‘ownership of a copyright, which is distinctive from authorship, the factors to be provided and evidence to be led on skill, labour and knowledge would depend and vary on the special facts of each case and is very much a subjective test.
“In JD Fernando vs Gamlath (2011)1 SriLR 273 this court clearly identified and recognised the reputation of a singer and went on to state that there has to be a way of safeguarding the rights of original artists, composers and singers specially when a singer has achieved a reputation which would be recognised from generation to generation.
“In my view, such recognition could extend to a chef, too, like in the instant case and his creations and copyright safeguarded for generations, regardless of him being able to read or write, educated or not so educated, a ‘cook’ rising up from humble beginnings or a chef who has made an indelible mark in the culinary field here and overseas.”
The Supreme Court decided on May 17, 2023 that having considered the facts of this case, “the learned judge was in error and misdirected himself in declaring that the plaintiff is the author, owner and copyright holder of the ‘work’ . Moreover the relief granted to the plaintiff is erroneous and not in accordance with the law”.
It said the impugned judgment of the High Court dated 17th May, 2013 is set aside and the plaint dated was dismissed with costs fixed at Rs 25000/- payable by the Plaintiff-respondent to the Defendant-Appellant, Sarasavi Publishers.
It was a case that was followed with great interest not only by the publishers in Sri Lanka but also internationally as cases in other countries are also used in evidence by lawyers.
K.G. Sirisena with D.K.V. Jayanath appeared for the Defendant –Petitioner as Counsel while Asoka Serasinghe with Akalanka Seresinghe appeared for the Defendant –Respondent.