Intellectual Property Case: Gopal Bhattarai et. al vs. Nepal Government, Writ No. 072-CR-1763, Decision Date: 2080/02/28
Case: Copyright Infringement
Plaintiff/Applicant: Government of Nepal on the complaint of Pushkar Joshi and others
Defendant/Respondent: Gopal Krishna Bhattarai and others
Writ Number: 072-CR-1763
This case is related to the distinction between an author’s economic rights and moral rights.
Facts of the Case:
Pushkar Joshi, Kumar Bahadur Rai, and Shubharaj Ranabhat were the original authors of the textbook “Grammar for Communication Book-2,” first published in 2009 by New Nepal Publication Pvt. Ltd. On 2067/06/25, the authors sold their economic (copyright) rights in the book to Sanjay Satyal under a written agreement, which required that any future modification/editing of the book be done in consultation with, or with prior notice to, the original authors.
Sanjay Satyal subsequently sold these rights to Standard Publisher and Distributors Pvt. Ltd. Standard Published tried to contact the authors through Sanjay Satyal for revision purposes, but contact could not be established. Standard Publisher then got the book revised through other individuals (Gopal Krishna Bhattarai and others) and republished it in 2011 as “Standard Grammar for Communication Book-2” omitting the original authors’ names and printing the names of the revisers instead as “Written, Reviewed and Edited by.”
Upon discovering this, the original authors filed a complaint alleging copyright infringement and claiming damages of Rs 8,00,000. The publisher had, prior to the complaint, already published a public apology/correction notice in a national daily (Nagarik) and withdrew defective copies from the market, and republished the book with the original authors’ names restored.
Kathmandu District Court acquitted all defendants, holding that the charge was not proven. On appeal by the Government of Nepal, the Patan Appellate Court reversed the acquittal, convicted the defendants under Section 15(1) (a) / (c) of the Copyright Act, 2059, and imposed a fine of Rs 10,000 each and ordered compensation of Rs 20,000 to the complainants under Section 27(2) of the Copyright Act, 2059. The convicted defendants filed a review petition before the Supreme Court.
Legal Issues:
- Whether the unauthorized revision/republication of the book without the original authors’ names, subsequently corrected through a public apology amounted to a criminal offence of copyright infringement under Section 25(1)(a) and (c) of the Copyright Act, 2059.
- Whether economic rights, once validly transferred by contract, can still give rise to criminal liability for infringement when only the moral right was affected.
- Whether prompt correction, public apology, and withdrawal/republication of defective copies negates criminal culpability under the Act.
- Whether individual directors/shareholders of a company can be held personally criminally liable when the company itself (Standard Publisher and Distributors Pvt. Ltd.) was not made a defendant.
Different Courts Decision:
Kathmandu District Court:
District Court acquitted all defendants and held that the prosecution failed to prove the offence.
Patan Appellate Court:
Appellate Court reversed the acquittal and convicted defendants under Section 25 (1) (a)/(c) and imposed a fine of Rs 10,000 per defendant and ordered Rs 20,000 compensation to be paid jointly to the complainants under Section 27(2).
Supreme Court:
Supreme Court reversed the Patan Appellate Court’s decision and acquitted all the defendants. The loss of economic rights and the continuation of moral rights are two distinct matters – even after transfer of economic rights, the author’s moral right as the “parent” of the work remains with them, encompassing their personality and dignity, and protection from immoral use or misuse of their creation. Moral rights are ethical in nature and when a moral wrong occurs, the remedy lies in moral reform and restoration, not necessarily criminal punishment.
In this case, the omission of the author’s names was an inadvertent, human/printing error by a commercial publisher; and it was promptly corrected, publication of the flawed copies was halted, and the moral right of the authors was respected and restored through public apology and correction. Hence, the conduct did not amount to the offence defined under Section 25 (1) (a) and (c) of the Copyright Act, 2059.
Since the economic rights had already been validly transferred by contract, and only the moral right was briefly and unintentionally infringed and later remedied criminal liability could not be sustained.
The Court acquitted all the defendants and fines already deposited were ordered to be refunded.
Principle Established:
- Economic rights and moral rights are distinct and severable. An author may transfer/sell economic rights by contract, but the moral right-the right to be identified as author (paternity right), and the right against distortion/mutilation of the work remains permanently with the author and cannot be transferred as per Section 8 of the Copyright Act, 2059.
- Moral rights survive even after economic rights are transferred.
- The remedy for a moral-rights violation is fundamentally restorative/corrective rather than punitive especially where the violation was voluntarily corrected.
Relevancy of the Case:
This is a landmark Nepali Supreme Court precedent on the moral rights of authors.
