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Lawyer sued by Aga Khan fights back

|Written By Michael McKiernan

A Toronto lawyer facing a lawsuit by the Aga Khan is alleging the spiritual leader isn’t actually behind the action, according to his statement of defence.

The Aga Khan, pictured in Ottawa in 2008. The hereditary imam has launched a copyright case against two men, including a Toronto lawyer, over religious books they published.

In the document filed with the Federal Court, Alnaz Jiwa claims Shafik Sachedina, a senior Ismaili who works at the Aga Khan’s offices in Aiglemont, France, initiated the action for breach of copyright.

Ismailis are part of a branch of Islam that accepts the hereditary imam, who traces his lineage all the way back to a cousin of the Prophet Muhammad, as its spiritual leader. If the action “is authorized by the Aga Khan, it was authorized based on misleading information given to the Aga Khan by his advisers,” Jiwa said in the statement of defence.

Brian Gray, a senior partner at Ogilvy Renault LLP and counsel for the Aga Khan, declined to comment on the merits of the defence but did confirm his client authorized the action. Nevertheless, he says he has also dealt with Sachedina on the matter.

“We are thinking about how we can convince the defendants that it really is the Aga Khan that’s bringing this action,” Gray tells Law Times.

A Statement of Claim lodged earlier this month (see "Lawyer sued by Aga Khan keeping the faith") listed the Aga Khan as the plaintiff, accusing Jiwa, along with another man, of infringing the Aga Khan’s  copyright and moral rights by compiling and selling a book of collected Farmans, a type of religious message delivered by the Aga Khan to his followers. None of the allegations have been proven in court.

Jiwa’s co-accused, Nagib Tajdin, who gives his mailing address as being in Nairobi, refers throughout his statement of defence to the “usurper plaintiff” and claims he presented the Aga Khan with the first volume of his collection at a ceremony in Montreal in 1992.

“After giving his blessings, the imam gave the guidance to continue the work [the publication of his Farmans] with blessing for the success in the work undertaken,” Tajdin claims. Both defendants are so far representing themselves in the case.

In an e-mail to Law Times, Jiwa said the Ismaili constitution doesn’t prohibit the reproduction of Farmans. He added the Aga Khan would have explicitly banned the practice in one of his teachings if he objected.

“Our imam urges us to comply with our constitution, and as such I cannot imagine that my imam would bring such an action when my activities are not breaching any articles of our constitution,” he said.

“If the claim really is brought by the Aga Khan, then there will be no dispute to resolve at all,” he added.

Both defendants reinforce their allegiance to the Aga Khan in their statements of defence. In Jiwa’s case, he says he “seeks to carefully abide by his imam’s Farmans” and will “not knowingly refuse to abide” by them.

If the Aga Khan does object to their distribution, Jiwa says he will “submit to the instructions of his imam without reservation whatsoever.”

It’s in those expressions of belief and devotion that Gray sees a potential solution to the case. “They clearly believe in what they are doing and don’t think the Aga Khan is against them,” he says.

“We are looking for the most convenient or maybe the least inconvenient way for the Aga Khan to convince them that he authorizes this action, short of flying him over to Toronto simply because this has happened. That is something he does not wish to do.”

Gray is hoping a sworn statement or affidavit from the Aga Khan will be enough to resolve the matter, but earlier pleas to halt allegedly fell on deaf ears.

A spokesperson for the Aga Khan previously told Law Times the imam and his brother had warned the defendants to stop distribution of their book. In his e-mail, Jiwa denies this, while Tajdin alleges in his statement of defence that correspondence he received from the Aga Khan bore a forged signature.

If the action does proceed, Susan Beaubien, an intellectual property lawyer with Macera & Jarzyna LLP in Ottawa, says the case still revolves around the key issues of whether the works themselves are copyrightable and what right the defendants had to use them.

In cases involving religious figures, she says establishing the ownership of works is far from straightforward.

“In order for copyright to attach to a work, the work must be original to the author. 

Presumably, the court will be hearing evidence as to whether these texts were personally authored by the plaintiff imam or whether he is acting as a conduit to relay divine teaching to the religious faithful.

If the evidence shows that the imam is transmitting divine wisdom, can the work be original in the sense of having been personally authored by him? Or is God the author?”

Apart from the explicit consent the defendants claim they received in 1992, Jiwa says that by encouraging Ismailis to abide by his teachings, “the Aga Khan has impliedly given his consent to the Ismailis to have access to his Farmans.”

He also argues the books were not for profit and notes he vetted all recipients to ensure the copies went only to Ismailis.

Without explicitly pleading it in their defence, Beaubien says the defendants could mount a case under the fair-use provision of the Copyright Act if the works are found to be copyrightable.

“The defendants seem to be saying that the imam’s followers have to obey these pronouncements, but they are not easily or widely available to them. The materials being sold by the defendants are said to provide needed access to the imam’s teachings.

That raises the issue as to whether the fair-use provisions of the Copyright Act are broad enough to shield what the defendants are doing.”

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