Alnaz Jiwa, a lawyer with Jiwa & Associates, could find himself facing down the spiritual leader in a Canadian court after the Aga Khan named him as a defendant in a copyright infringement case launched in the Federal Court last week.
The Aga Khan is the spiritual leader of the Ismailis, a branch of Shia Islam to which Jiwa and his co-defendant belong.
“I still follow him, absolutely, without any doubt,” Jiwa tells Law Times. “You will get the answer to this when I file the defence,” he says, noting he has yet to appoint a lawyer to act on his behalf.
“I don’t want to make any comments now until my defence is filed. Once I file it, I will set out the circumstances and answer the questions,” he adds.
The Aga Khan alleges in the claim that Jiwa and Montreal businessman Nagib Tajdin infringed his copyright and moral rights by compiling a book that collected addresses delivered to Ismaili communities around the world between 1957, when he assumed his title, and 2009.
The materials include 589 Farmans - addresses the Aga Khan gives as imam to his followers - and 77 Talikas, which are brief religious messages to Ismailis in writing. The suit claims the Aga Khan is the sole author of those materials.
According to the claim, Jiwa and Tajdin, as well as other unknown defendants, sold the book for $50 per volume in multiples of four. Buyers allegedly got 14 MP3 audio files featuring extracts read by the Aga Khan free with the book.
The imam is seeking punitive and exemplary damages in addition to damages for the alleged infringement of his copyright and moral rights. None of the allegations have been proven in court.
Brian Gray, a senior partner with Ogilvy Renault LLP who is representing the imam in the suit, provided an e-mailed statement from an Aga Khan spokesperson claiming the defendants had been cautioned numerous times to halt their operation, warnings that included personal pleas from the Aga Khan himself and his brother.
“The Aga Khan has taken this matter extremely seriously,” the statement notes. “He would not have taken this course of action if there was an alternative.
The only recognized legal way to stop them is through the courts.”
The Aga Khan traces his lineage back to Ali, the cousin of the Prophet Muhammad. Although he was born in Switzerland, he lives in France and is a British citizen.
The statement of claim says the imam’s mandate is to interpret the faith for Ismailis who live in more than 25 countries around the world.
Colleen Spring Zimmerman, a partner with Fogler Rubinoff LLP in Toronto, says she has never seen a case like this one with a religious leader taking on one of his own followers. Nevertheless, the statement of claim alleges Tajdin was asked to stop a similar operation in the early 1990s.
Zimmerman says that piece of information could be crucial when it comes to deciding whether to award the Aga Khan the punitive and exemplary damages he’s looking for in the case.
“They’re asking for broad sweeping relief against these defendants,” Zimmerman notes. “The court has in the past granted punitive and exemplary damages in certain circumstances, but there has to be behaviour which goes beyond normal copying of a work, something that goes to the very root of misconduct.
If a defendant was warned in the past not to do this and now they’ve done it again, the punitive and exemplary damages may come to bear.”
The religious dimension of the case makes the outcome much less predictable, she adds. That could explain why the Aga Khan is claiming a breach of moral rights.
“It’ll be interesting to see from a moral rights point of view whether the defendants have said anything to which he would object and to what extent he has the right to stop the reproduction and distribution of this work solely on the basis of moral rights rather than copyright,” Zimmerman says. “I’ll be very interested to see what the court has to say on that.”
Without seeing the materials herself, Zimmerman says it’s hard to tell whether the Aga Khan’s works have been amended but she’s not the only one in the dark.
The statement of claim says the Aga Khan himself hasn’t verified the accuracy of the infringing materials but leaves the door open to a moral-rights breach by pointing out that “any act of omission that is contrary to the moral rights of the author is an infringement” of them under the Copyright Act.
“As has been his systematic practice for many years, the Aga Khan often annotates and edits his texts in accordance with established criteria and well-established guidelines before any publication of them,” the claim states.
Zimmerman says the plaintiff’s decision not to claim an independent copyright on the MP3 recordings was noteworthy.
The recordings are in the Aga Khan’s own voice, but the claim alleges only that they breach his copyright inasmuch as they are “a copy in substantial part” of the Farmans and Talikas in the book.
“So if there’s any issue with the ownership of those literary works, that’s going to be a problem for the plaintiff,” Zimmerman says.
In the e-mailed statement, the spokesperson for the Aga Khan explained he felt the issue of the sound recordings would unnecessarily complicate the claim. It also indicates that photographs in the book raise another question around personality rights, another issue the plaintiff avoided in the claim.
“It was hoped to keep the matter simple by focusing only on the copyright in his written works,” the statement says. “If necessary, these other matters may have to be asserted later.”
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