Document 1 in Aid of OIF's Copyright Claims

This page is part of the historical background relating to "What Is an Osho?", a slick, sannyas-paradigm-shifting policy paper written by Amrito and circulated in 1998. A deconstruction of Amrito's paper is presented on this site, introduced here. A large subset of the background addresses various aspects of OIF's claimed right to control Osho's legacy, particularly regarding the legal muscle of copyright and trademark. This page discusses the first document OIF is using to justify their copyright claims and makes clear its inadequacies and limitations. It is sourced from Osho Friends International. For more legal pages, see OFI or Legal Main Page.

Document 1
: An agreement dated 1978 and allegedly between Osho and Rajneesh Foundation (RF) in India. The text on this page plus images of all the pages of the document can be found at the OFI link above. For the other docs, see here.

Document 1 was allegedly signed by Osho in India in 1978. No original of this document is known to exist and there is no living person who can authenticate a copy, as both Osho and Laxmi have left the body. Unless it can be authenticated, this document can't be used in court to support any claim to copyright ownership. This document is on file with the US Library of Congress and is a public record.

The 1978 document purports to be a conditional license for exclusive publishing rights in possibly eight of Osho's early works. The document was filed with the US Library of Congress with a list of eight titles. The list of titles appears on RFI stationary, therefore the list was created later and was clearly not part of the purported agreement in 1978. It was filed with an affidavit signed by Ma Anand Sheela and dated May 26, 1985.  Sheela claimed to be acting under a power of attorney from Osho (which she probably had at that time) and swore that this list was an exact copy of the list Osho provided to RF in 1978.

Document 1 required Osho to give RF a list of titles He was including in the license. Paragraphs 4 and 8 of Document 1 say:

4. The Declarant has given to the Trust a List of the books, articles and writings so far written by the Declarant and shall as and when any further books and articles are written, or any speeches are delivered, he shall furnish copies thereof to the Trust to enable them to publish the same as aforesaid.

8. The Declarant hereby reserves the right to decline to give right for publication of any future book or writing hereafter written by him.

The only evidence of the list Osho might have produced under Document 1 is the list produced by Sheela in 1985. We don't have any records of later works, if any, Osho chose to include in the license to RF.

Paragraph 8 makes it clear that Osho did not transfer rights in His future works to RF in 1978, since this purported agreement specifically reserves the right for Osho to include each future work by passing the title to RF or exclude it from the license.

What Titles?

Since the list contained only eight titles, this was an admission by RFI that Osho had not included most of the material He had already spoken in the alleged license to RF. By 1978 Osho had delivered more than 49 discourse series in English (See Osho English Discourse Series Spoken Before the Alleged 1978 Document Was Signed) and many others in Hindi, as well as material for several books of talks to individuals in evening sessions [Darshan Diaries]. If Osho was licensing only eight discourse series to RF in 1978, that document clearly did not cover most of His work up to that date. This is yet another proof that Osho did not transfer ownership of all His copyrights to RF. The discourse series Osho delivered before the date of the 1978 document that do not appear on Sheela's list could never be covered by any chain of title that relies on the 1978 document.

The titles Sheela listed were:

The Mustard Seed, I Am The Gate, 202, The Inward Revolution, The Silent Explosion, Dynamics of Meditation, No Water, No Moon, Seeds of Revolutionary Thought

The titles 202, The Inward Revolution, The Silent Explosion, and Dynamics of Meditation, don't appear on English discourse lists. They are likely compilations of early talks. Only four of the titles listed were English discourse series. [Nearly right: The Inward Revolution is an early title of Psychology of the Esoteric.]

Because OIF, Zürich got all the rights it has from RFI, USA it is bound by RFI's admission that the 1978 document covered only eight titles. The list of titles is accompanied in the US Library of Congress filing by an affidavit from Sheela dated 1985, yet RFI failed to list any other titles that Osho had added to the license between 1978 and 1985.

What Rights?

The 1978 document grants only publishing rights. Part of the introduction to the grant of rights says:

The said Books, Discourses, Lectures, Pamphlets, Papers and Tape Records are, in the premises, the property of the said Trust;

The Trustees of the said Trust have requested the Declarant to make this Declaration so as to enable the Trust to establish its title in the said Books, Lectures, Pamphlets, Papers and Tape Records.

In other words, though RF may have owned the physical books and tape recordings, it didn't own the intellectual property rights acquired by Osho through creating the work. The foundation was asking Osho to make clear what rights RF has in those intellectual property rights. In response, Osho (allegedly) says:

I say the exclusive printing and publishing rights in the said Books, Articles, Speeches, Writings and other Works heretofore written or delivered as the case may be by the Declarant and the Books, Articles, Speeches, Writings and other Works to be hereafter written or delivered by the Declarant (hereinafter referred to as "the said Works"), have or shall be the property of the said Trust. The Trust has agreed to the conditions hereinafter appearing as regards the said Works. (Emphasis added.)

The important legal question—assuming this document could ever be legally authenticated—is whether this language transfers Osho's copyright ownership in the works to RF, India. The answer is a decided no, and that's because of the last sentence (in italics here), in addition to other parts of the document. The first sentence is a little bit ambiguous; is Osho granting just printing and publishing rights or something more? The question is answered in the last sentence. When copyrights are transferred there can be no conditions to the transfer. When material is licensed, such as for printing and publishing, the copyright owner can impose conditions. If there are conditions, as there clearly are here, there can be no transfer of copyright ownership.

Copyrights are really a bundle of rights that include things like the right to publish, the right to quote, the right to use in compilations, the right to revise, the right to market. A copyright holder can transfer a part of those right to others, in fact, most authors do.

A copyright includes the right to print and publish a work. Any writer who is published by a publishing company transfers those rights to the publisher, usually for a specified geographical area for a limited time. For example, I might transfer publishing rights in a book in the US, Canada, and Great Britain to Random House for a period of five years. That's standard procedure in the publishing business. Random House won't publish my book unless I give them those rights.

When I sign a publishing agreement, legally I'm giving the publisher a license to publish my work subject to conditions or limitations. In this example the limitations are the geographical areas and the time period. The important thing about a license is that I still own all the rights, even the rights I'm licensing. I get them back after the license has run its course or if the conditions of the license are violated.

A transfer of copyright ownership, on the other hand, is a complete transfer of all copyright interests in the material and can't be taken back. If I transfer legal ownership of something to another person, I lose all control over that property. For example, if I sell you my car I can't tell you who can drive it and what kind of insurance you have to maintain, how often you have to change the oil, and so on. The car isn't mine anymore and I have no further legal right to impose any controls on how you use it. On the other hand, if I lease or rent my car to you, I retain ownership rights in the car. I transfer rights to use the car to you, so you have some temporary rights in the car, but I retain ownership and the right to impose control. Now I can tell you how to use, maintain, and insure the car. The car is mine, and if you don't comply with my conditions, I can take the car back from you.

The same is true of copyrights. If I grant a license to publish I am, in a sense, leasing my copyrights to the publisher, and I will get those rights back eventually. If an agreement related to copyrights sets conditions and limitation, then, it is clear that the document is not transferring ownership. For that reason, the 1978 document can only be a license.

This conclusion is further confirmed by paragraph 8 (reserving all future rights), quoted above, and paragraph 12:

Should the Trust at any time wilfully fail to fulfill or to comply with any of the conditions herein contained, the Licence to publish the said Works shall thereupon determine [end] and the Declarant shall be free to grant Licence to any other person to print and publish the same.

This makes it absolutely clear that Osho, if He signed this document, was not transferring His full copyrights to RF, but giving RF a license specifically conditioned on fulfilling certain requirements that are set out in the agreement. These requirements include usual things like payment of publishing costs, notice requirement, and presentation copies, but they also include a very specific condition about translations and abridgments (i.e. compilations). Paragraph 5 says:

The Trust shall have the sole and exclusive right of publishing, republishing and producing in any part of the world the said Works and all translations, abridgments and licenses for the said purposes PROVIDED HOWEVER no translation or abridgment shall be made except with the written consent of the Declarant and on the terms imposed by him and all such grants shall be subject to this Declaration...

As we saw above, paragraph 12 of this document says that the publishing license shall end if these conditions are not met. OIF has purported to approve the publication of many compilations. So, if OIF ever had any publishing rights under this document, OIF has violated this provision many times and those rights, if any, would most likely have ended.