Vacating stay on the release of the Hindi-dubbed version of its Telugu remake of the Malayalam film 'Ayyappanum Koshiyum', the Delhi High Court has held that the owners of copyright in a cinematographic work will have the right to both sub-title and dub their work.
The single judge bench of Justice Jyoti Singh vacated its earlier ex-parte injunction order.
The Court was at the outset referred to relevant provisions of the Copyright Act and remarked that since the conundrum that is required to be resolved in thepresent case essentially revolves around the dubbing rights of the respective parties, the expression ‘communication to the public’ needed to be undersood.
It then cited one of its earlier judgement that in which it was held that dubbing would fall within the ambit of the expression ‘communicating to the public’ while interpreting the expression ‘otherwise enjoyed’ in Section 2(ff) of the Act.
"17. In other words, it makes available to the producer/author, the right to make a cinematograph film available for being seen or heard or enjoyed by public directly or by any means of display or diffusion. 17.1. The use of the expression “otherwise enjoys” after the words seen or heard enlarges the scope of how communication with the public has to be made. If this was not so, the Legislature would have restricted the communication to aspects which are relatable to the obvious sensory attributes of human beings such as hearing and seeing. The Legislature it seems consciously has enlarged the scope of the expression “communication to the public” by bringing in the aspect of enjoyment. Dubbing would, thus, in our view, fall within the ambit of the expression communicating to the public."
It was the case of the Plaintiff that Defendant had assigned restricted right to Defendant to remake and dub the Malayalam film in Telugu language only and did not include the right to dub in any language as also that the suit film is not a ‘new work’ entitled to an independent copyright therein, the case of the Defendants is that there subsists a separate and independent copyright in the remade Telugu film and Defendant is the owner of that copyright having the right to exploit the film in all formats, including dubbingthe same in any language.
The Court examined the Assignment Deed and noted that the Assignors renouncedall their rights whatsoever over the film ‘produced’ and dubbed in Telugu language and subtitled in all world languages, without any geographical restriction.
"The Remake and Dubbing rights assigned to the Plaintiff by Defendants No. 3 and Late Kovakattu in the Malayalam film inter alia were to make a new cinematograph film based on the Malayalam film and the underlying works thereof (New Film) in Hindi language and the right to dub the Malayalam film in any and all languages known or coming into existence in the near future (DubbedFilm). Plaintiff was also assigned the right to dub the New Film in any language existing or coming into existence in future, which needless to state included dubbing in Hindi language."
On relief sought by the plaintiff, the Court opined that twhat is required to be seen is the Remake andDubbing rights that were assigned to the Plaintiff by Defendant No. 3 in the Malayalam film.
The recitals of the Deed of Assignment prima facie show that the ‘Remake and Dubbing rights’ inter alia included making a new cinematograph film and the underlying works thereof in Hindi language with the right to dub the Malayalam film as well as the New Film in any and all languages known or coming into existence in the near future, it observed.
Noting that the Plaintiff was not assigned the right to remake the Malayalam film in Telugu language, which was a right assigned to Defendant No. 1 by Defendant No. 3, the Court commented that if Defendant No. 1 had remade the Malayalam film in Hindi language or had dubbed the same in Hindi language, Plaintiff may have had a cause of action for infringement.
"Beyond a doubt, the case of alleged infringement would require to be tested within the four corners of the provisions of Section 51 of the Act and the limited issue at this stage that requires consideration would be the exclusive rights given to the Plaintiff under the Deed of Assignment and to see if those rights are infringed. Dubbing of the remade Telugu film into Hindi, in my prima facie view, does not amount to infringement of the exclusive right of the Plaintiff to remake the Malayalam film in Hindi language and to dub the New Film as well as the Malayalam film in all languages."
In view of the above, the Court came to the conclusion that none of the contentions raised by the Plaintiff at the time of grant of ex parte ad interim injunction hold water in law.
"Plaintiff, no doubt, has a right to remake the Malayalam film in Hindi language as well as dub the same or the New Film in any language, however, Defendant No. 1 has admittedly dubbed the remade Telugu film (suit film)in Hindi,which does not infringe the Plaintiff’s right, applying the provisions of Section 51 of the Act. Insofar as the contention that the Deed of Assignment in favour of Defendant No. 1 restricts the right to dub the Malayalam film or its remake in Telugu language only is concerned, as aforementioned, Defendant No. 1 is neither remaking nor dubbing the Malayalam film in Hindi language and Plaintiff can have no grievance with the manner Defendant No.1 is exploiting its rights in the remade Telegu film.Even assuming for the sake of argument that Defendant No. 1 is violating the terms of the Deed of Assignment executed with Defendant No. 3, in terms of dubbing the remade Telugu film in Hindi, it may at the highest give rise to a cause of action in favour of Defendant No. 3, who has not chosen to sue Defendant No. 1, but cannot be the basis of an infringement action in favour of the Plaintiff."
As far as the commercial viability of the proposed film of the Plaintiff is concerned, as rightly argued by the Defendants, this is a factor which is wholly irrelevant to the issue of alleged violationsof the provisions of the Copyright Act, under which an action for infringement can only be predicated on existence of a copyright, the Court said.
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