Delhi High Court
Super Cassettes Industries ... vs Mr Chintamani Rao & Ors. on 11 November, 2011
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 11.07.2011
% Judgment delivered on: 11.11.2011
+ I.A. No. 13741/2006 in CS(OS) 2282/2006
SUPER CASSETTES INDUSTRIES LIMITED ..... Plaintiff
Through: Mr Amit Sibal with Mr Jagdish
Sagar, Advocates
versus
MR CHINTAMANI RAO & ORS. ..... Defendants
Through: Ms Pratibha M Singh & Mr Deepak
Gogia, Advocates
AND
+ I.A. No. 13743/2006 in CS(OS) 2283/2006
YASHRAJ FILMS PRIVATE LIMITED ..... Plaintiff
Through: Mr. Jagdish Sagar, Advocate
versus
MR CHINTAMANI RAO & ORS. ..... Defendants
Through: Ms Pratibha M Singh & Mr Deepak
Gogia, Advocates
AND
+ I.A. No. 9900/2006 in CS(OS) 1706/2006
(INDIA TV) INDEPENDENT NEWS SERVICES PVT. LTD.
..... Plaintiff
Through: Ms Pratibha M Singh & Mr Deepak
Gogia, Advocates
versus
YASHRAJ FILMS AND ANR. ..... Defendants
Through: Mr Amit Sibal with Mr Jagdish
Sagar, Advocates
CS(OS)Nos. 1706/2006 & 2282-83/2006 Page 1 of 73
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment? : Yes
2. To be referred to the Reporters or not? : Yes
3. Whether the judgment should be reported
in the Digest? : Yes
JUDGMENT
VIPIN SANGHI, J.
1. By this order I propose to dispose of the aforesaid interim
applications preferred under Order 39 Rules 1 & 2 CPC in the three
suits mentioned above.
Introduction
2. CS(OS) 2282/2006 has been filed by Super Cassettes Industries
Limited (hereinafter referred to as „Super Cassettes‟), which is
engaged in the business of producing and marketing of audio
cassettes, video cassettes, compact discs, televisions, CD players etc.,
The plaintiff is the proprietor of the T-series brand of music cassettes
and CDs. The plaintiff claims copyright in cinematographic films and
sound recordings in a large number of literary, musical and
cinematographic works. The plaintiff claims that it gives licenses to
other broadcasting organizations for use of the works in which it has
copyright. The defendants in the suit are Shri Chintamani Rao, the
Chief Executive Officer of defendant no.3 Independent News Services
Pvt. Ltd. (India TV for short). Defendant no.2 Shri Rajat Sharma is the
Chairman of defendant no.3. The plaintiff in the suit seeks a permanent
injunction to restrain the defendants from, inter alia, engaging in public
performance/communication to the public, reproduction, recording,
distributing, broadcasting or otherwise publishing or exploiting any
cinematographic films, sound recordings, literary works or musical
works in which the plaintiff owns the copyright. The plaintiff has filed
I.A. No. 13741/2006 under Order 39 Rules 1 & 2 read with Section 151
CPC to seek an interim injunction in the aforesaid terms, during the
pendency of the suit.
3. CS(OS) 2283/2006 has been preferred by Yashraj Films Private
Limited (hereinafter referred to as „Yashraj Films‟). The plaintiff states
that it is a leading film producer in India. Its activities extend to the
small screen i.e., television and distribution of its musical works and
sound recordings. It also distributes its cinematographic films and DVD
format and its music in compact discs (CDs). The plaintiff also gives
licences to other broadcasting organizations for use of the works in
which it enjoys copyright. The defendants in this suit are the same as
those in CS(OS) 2282/2006 namely Shri Chintamani Rao, CEO,
Independent News Services (P) Ltd. (India TV), Mr Shri Rajat Sharma,
Chairman, India TV and Independent News Services Pvt. Ltd. (India
TV). The reliefs sought in this suit is that of a permanent injunction to
restrain the defendants from recording, distributing, broadcasting or
otherwise publishing or, in any other way exploiting the films "Bunty
aur Babli" and "Salaam Namaste" or any song or other work or part
thereof incorporated in the said cinematographic films, or doing any
other act which could lead to infringement of copyright in the said films
and the works incorporated there. A further injunction is sought to
restrain the defendants from performing or communicating to the
public, recording, distributing, broadcasting or otherwise publishing or
in any way exploiting any cinematographic film, song or other work or
part thereof, the copyright whereof is owned by the plaintiff or from
doing any other act which could lead to infringement of the copyright
in the works owned by the plaintiff. The plaintiff in this suit has
preferred I.A. No. 13743/2006 under Order 39 Rules 1 & 2 read with
Section 151 CPC to seek interim injunction in the same terms in which
the final relief is sought. In neither of the aforesaid two suits and
interim applications, the Court has granted any ad-interim order of
injunction till date.
4. CS(OS) 1706/2006 has been filed by (India TV), Independent
News Services Pvt Ltd against Yashraj Films (Defendant no.1) and
Super Cassettes Industries Limited (defendant no.2) to seek a
declaration and permanent injunction. The case of the plaintiff is that it
runs a news channel called India TV. In its programme the plaintiff has
used some of the cinematograph and musical works, the copyright
wherein is claimed by the defendants. It is the case of the plaintiff that
its use of the said works is permitted by Section 52 of the Copyright
Act, 1957 as the law permits fair use, fair dealing and fair comment of
or on, or with any literary, dramatic, musical or artistic work. The
plaintiff seeks a decree of declaration that the use by the plaintiff of
the works of the defendants constitutes fair use, fair dealing and fair
comment, and does not constitute infringement of copyright. The
plaintiff also seeks a declaration that the threats issued by the
defendants are illegal and seeks a permanent injunction to restrain the
defendants from issuing notices or interfering with the plaintiff‟s
telecast of its programmes. The plaintiff in this suit has preferred I.A.
No.9900/2006 under Order 39 Rules 1 & 2 read with Section 151 CPC
to seek a restraint against the defendants from issuing notices to the
plaintiff, or interfering with the plaintiff‟s telecast of its various
programmes. This application was taken up for consideration on
05.09.2006 by the Court. This Court granted an ex-parte ad-interim
order of injunction to the effect that the defendants (Super Cassettes
and Yashraj Films) are prohibited from circulating or distributing the
notices which they have issued, or may propose to issue to the plaintiff
India TV, to the Media or any other third party.
5. During the course of arguments, India TV has not seriously
disputed the claim of ownership of copyright made by Super Cassettes
or Yashraj Films in the works mentioned in their respective suits, of
which the said plaintiffs claim infringement by the defendant India TV.
6. To appreciate the controversy raised in these three suits, it
would be necessary to first understand the manner in which India TV is
accused of exploiting the copyrights of the two plaintiffs Super
Cassettes and Yashraj Films.
Case of the Plaintiffs Super Cassettes & Yash Raj Films
7. The case of Super Cassettes is that between 07.04.2006 and
27.05.2006 the plaintiff had found on random monitoring that the
defendant India TV had unauthorisedly broadcasted the sound
recordings and/or telecast audio visual songs (video/cinematographic
films) from various cinematograph films, the copyright in respect
whereof vests with the plaintiff. The case of the plaintiff is that the
plaintiff sent a notice dated 26.07.2006 to the defendant, India TV
detailing the various instances of infringement of the plaintiff‟s
copyright as randomly found between 07.04.2006 and 27.05.2006. In
the said legal notice the plaintiff alleged infringement of the plaintiff‟s
copyright in the following works:-
FULL SONG DETAILS FOR CHANNEL INDIA TV FROM 07/04/2006 TO 27/05/2006
DATE FILM/ALBUM SONG TIME DURATION PROGRAMME
7/4/06 ANURADHA PAYOJI MAINE RAM 1146 1 MIN 47 SEC BABA KA JADOO
PAUDWAL RATAN [S.S] CHAL GAYA
7/4/06 FAMILY PYAR BINA [AUDIO 1247 34 SEC FASHION KI
TRACK] DHOOM
7/4/06 FAMILY PYAR BINA [AUDIO 1445 34 SEC SHOW TIME
TRACK]
7/4/06 FAMILY PYAR BINA [AUDIO 1526 34 SEC NEWS
TRACK]
7/4/06 ZINDA ZINDA HOON MAIN 1809 1 MIN 34 SEC SHOW TIME
[SHIRANI KASHAP] S.S.
7/4/06 ZINDA ZINDA HOON MAIN 0037 1 MIN 34 SEC SHOW TIME
[SHIRANI KASHAP] S.S.
8/4/06 JAWANI SINI NE [AUDIO 1424 17 SEC NEWS
DIWANI TRACK]
8/4/06 JAWANI SINI NE [AUDIO 1446 17 SEC SHOW TIME
DIWANI TRACK]
8/4/06 JAWANI SINI NE [AUDIO 1526 17 SEC NEWS
DIWANI TRACK]
8/4/06 JAWANI SINI NE [AUDIO 1144 17 SEC NEWS
DIWANI TRACK]
8/4/06 JAWANI SINI NE [AUDIO 1246 17 SEC NEWS
DIWANI TRACK]
8/4/06 JAWANI SINI NE [AUDIO 1816 17 SEC SHOW TIME
DIWANI TRACK]
8/4/06 COMPANY SNAP SHOTS 1955 32 SEC BOLLYWOOD KA
GYANGSTAR
8/4/06 BHOOT SNAP SHOTS 2026 15 SEC CHAT MASALA
8/4/06 BHOOT SNAP SHOTS 2027 10 SEC CHAT MASALA
8/4/06 TEZAAB EK DO TEEN [AMIT 2303 1 MIN 40 SEC INDIA BEATS
KUMAR] S.S
8/4/06 TRIDEV THIRCHI TOPIWALE 2352 1 MIN 27 SEC INDIA BEATS
[AMIT KUMAR] S.S
8/4/06 JAWANI SINI NE [AUDIO 0047 17 SEC SHOW TIME
DIWANI TRACK]
15/04/06 MR. INDIA MERA NAAM 2001 15 SEC CHAT MASALA
CALENDER
15/04/06 TERE NAAM ODHANI ODHALI 2005 20 SEC CHAT MASALA
15/04/06 HUM AAPKE SNAP SHOTS 2006 33 SEC CHAT MASALA
DIL MEIN
R.HAI
15/05/06 ARYANS KEHATA HAI DIL [S.S] 2307 3 MIN 48 SEC INDIA BEATS
13/05/06 AKSAR LAGI [AUDIO T.] 2030 30 SEC CHAT MASALA
13/05/06 AKSAR LAGI [AUDIO T.] 2042 30 SEC CHAT MASALA
13/05/06 AKSAR MOHABBAT KI 2042 24 SEC CHAT MASALA
27/05/06 MISS SPICY PARDESIYA 2032 20 SEC CHAT MASALA
MIX
27/05/06 MAIN HOON VIDEO CLIP 2035 16 SEC CHAT MASALA
NA
27/05/06 MAIN HOON VIDEO + DIALOGUE 2036 15 SEC CHAT MASALA
NA
27/05/06 EK KHILADI EK ANKHIYA NA MAAR 2038 30 SEC CHAT MASALA
HASINA
27/05/06 KAANTE MAHI VE [S.S] 2106 3 MIN 04 SEC INDIA BEATS
[per. Richa
Sharma]
27/05/06 KAANTE VIDEO CLIP 2106 22+12 SEC INDIA BEATS
[per. Richa
Sharma]
27/05/06 MUSAFIR RABBA [S.S] 2106 3 MIN 34 SEC INDIA BEATS
[per. Richa
Sharma]
8. The plaintiff also states that the aforesaid list is not exhaustive.
According to the plaintiff Super Cassettes, the defendant India TV did
not reply to the aforesaid notice and consequently, another notice was
sent to the defendant on 05.09.2006.
9. The plaintiff Super Cassettes has filed alongwith the plaint, what
it claims, is a non-exhaustive list of instances of illegal and
unauthorized use of the various literary, musical works, sound
recordings and cinematographic films, in which the copyright vests
with the plaintiff, by the defendant India TV.
10. It is also the case of the plaintiff that the infringement of the
plaintiff‟s copyright has taken place, inter alia, on India TV‟s weekly
programmes "India Beats" which is one of the most popular
programmes of the defendants‟ channel "India TV" and is purely an
entertainment programme. The programme is recorded and aired at
prime time on Saturday night at 9.00 pm and the broadcast is
interspersed with heavy advertising. In this programme a popular
singer or group of singers performs a medley of songs before a studio
audience. The songs performed by the singers need not be new or
recent releases, and do not necessarily date from any particular
period. According to the plaintiff Super Cassettes, there is no
spontaneity about these shows and they are set up by the defendant
and arranged with a great deal of planning. The defendant India TV
arranges the presence of musicians with musical instruments who,
according to the plaintiff, have obviously rehearsed before hand to
accompany the singer who performs the songs. The defendant India
TV also arranges for live and choreographed background dancers who
are dressed to accompany the main performers, who dance as they
sing. The programme host/hostesses also dances along. The studio
audience is repeatedly and actively encouraged by the singers and the
host to participate in singing along by clapping and dancing. Very
large portions of the songs are sung, which often last almost four
minutes in duration. Where the song has been taken from the
cinematographic film, visual clips of the film are often shown to
accompany its performance. Stage is resplendent with bright lights and
colours and it is conducted in the manner of live shows performed in
public by singers and dancers associated with the Indian film industry.
In between the performances, the singers answer, very briefly, general
questions raised by the host regarding their life and career. The studio
audience only participate by singing along with clapping and dancing,
and there is no other input from the audience. The discussion between
the singer and host comprises a minor proportion of the programs
airtime. There is no genuine criticism or review of either the songs or
the performances, nor is there any element of reporting current events
in the performance of the songs.
11. By way of illustration, the plaintiff states that the "India Beats"
programme episode broadcast on 27.05.2006 on the defendant‟s
channel namely "India TV" at 2100 hrs. featured Ms. Richa Sharma as
the guest artist. Ms Sharma sang several songs including two in which
the plaintiff Super Cassettes holds the copyright namely "Mahi Ve"
from the film "Kaante", which she sang for approximately 3 minutes 16
seconds and "Zindagi Mein" from the film "Musafir" which she sang for
approximately four minutes. Of the total programme duration of one
hour, approximately 24 minutes (40%) comprised of songs sung by the
artist, approximately 17 minutes (28%) comprised of commercial
advertisements and approximately six minutes (10%) comprised of
advertisements of other India TV programmes, and approximately 2%
comprised of summary advertisements or miscellaneous items. Only
eleven minutes (18%) comprised of conversation with the artist. The
plaintiff claims that this is a fairly representative sample of time
allocation on the various episodes of the defendant‟s programme
"India Beats". The plaintiff has placed on record the audio-video
recording of the aforesaid programme apart from other episodes of the
same programme.
12. The plaintiff further states that apart from broadcasting "India
Beats" with infringing works in which the plaintiff holds copyright, the
defendant regularly broadcasting audio-video songs and sound
recordings from popular films and audio recordings in which copyright
is owned by the plaintiff such as "Star Aur Style", "Chat Masala",
"Fashion Ki Dhoom", "Tum Jiyo Hazaaron Saal" and their general news
bulletin. It is stated that the defendant India TV runs a programme
titled "Tum Jiyo Hazaaron Saal" on the birthdays of popular actors and
actresses wherein they use the birthdays of the celebrities to freely
and repeatedly broadcast video clippings, or audio-visual songs and
audio clippings of sound recordings featuring the person whose
birthday has been celebrated by featuring the voice of such celebrity.
13. Another example cited by the plaintiff Super Cassettes is that
during the news bulletin broadcast by the defendant on 29.06.2006,
the defendant, India TV featured a report on a controversy regarding
actress Shefali Jariwala. During the bulletin, the defendant aired video
clips for a duration of 47 seconds from the audio visual song "Kaanta
Laga" featuring Shefali Jariwala, repeatedly, even though the
controversy being reported had nothing whatsoever to do with the
song, nor did the defendant engage in any criticism or review of the
said song.
14. The plaintiff, Super Cassettes also states that the same audio
visual/audio clips are repeatedly broadcasted by the defendant India
TV several times in the span of an hour or few hours or days. Even in
the case of relatively short clips, the cumulative effect is substantial.
15. The case of Yashraj Films is that the defendant India TV made
infringing use of the song "kajarare" from the cinematograph film
„Bunty or Babli‟ in order to promote their programme "Sab Gol Mal He".
The second specific infringement allegedly committed by the
defendant pertains to the act of the defendant in broadcasting
excerpts from the cinematographic film „Salam Namaste‟ on
18.06.2008 during the defendant‟s programme India Beats, and
throughout the day, for promoting the same episode of the said
programme. The third specific act of alleged infringement is the
recording and broadcasting of the performance of a substantial portion
of a performance by Ms. Vasundhara Das of the title song from the film
„Salam Namaste‟ in their programme India Beats, which was
broadcasted on 18.06.2006. The plaintiff states that the programme
was inherently so designed that Vasundhara Das would sing "some
parts of her own songs out of her own choice. One of the songs was
the title song from Salam Namaste." The plaintiff also points out that
all the aforesaid alleged infringements are admitted by the defendant
India TV in their own suit being C.S. (OS) No.1706/2006.
16. I may note that during the course of hearing before me, the
defendant India TV has not raised any serious challenge to the factual
claim of the plaintiffs Super Cassettes and Yashraj Films with regard to
the use and exploitation of the literary and musical works, sound
recordings and cinematographic films in which the said plaintiffs claim
copyright.
Case of the Defendant India TV
17. The defence of India TV in the two suits filed by Super Cassettes
and Yashraj Films is founded upon Section 52 of the Copyright Act
which also forms the basis of its claim in its own suit being CS(OS)
1706/2006. According to India TV, the use of the copyright works by
India TV is fair use, fair dealing and fair comment for the purpose of
review and criticism and for reporting current events. India TV has
filed its written statements in the two suits preferred by Super
Cassettes and Yashraj Films. The two written statements are more or
less identical in their material part. India TV claims that it launched its
news channel India TV in March, 2004. Since its launch, it has become
one of the leading Hindi News Channel in India. It is claimed that its
channel has very high viewership ratings. It is claimed that its
programmes such as India Beats, Jago India, Apki Adalat, Sab Golmal
Hai etc., raise issues of public importance. India TV further states that
".....for effective dissemination of news, current events and
information to its viewers on some occasions uses small
clips of movies produced by the plaintiff and also audios
and/or videos of songs from movies produced by the
plaintiff. The issue involved in the present suit is that the
plaintiff claims that by such act the defendant no.3
infringes the copyright of the plaintiff while the defendants
case is that section 52 of the Copyright Act which deals
with and states in unequivocal terms that Fair Dealing and
specially for the purposes reporting of news and current
events of copyrighted works would not constitute
infringement of copyright....."
18. India TV claims that Section 52 permits fair dealing with
copyright works for the purpose of criticism or review, and for the
purpose of reporting. As regards the issue of quantitative use of the
plaintiff‟s works (i.e., the works of Super Cassettes and Yashraj Films) it
is submitted that a Hindi cinematographic film is of duration of about 3
hours or 180 minutes, and the defendant (India TV) uses the same for
a few seconds or at best for a minute or so. It is submitted that the
defendant uses one or two clips of a movie only to unfold some
moments to reflect upon the life of a celebrity. The said use by the
defendant is in a totally different context and does not amount to
quantitative copying. With regard to the use of the songs/musical
works of the plaintiffs (Super Cassettes and Yashraj Films), it is
submitted that the defendant‟s programme/interviews show the life
and struggle and rise of a particular singer being interviewed. It is
submitted that the singer‟s life is closely connected/knitted with songs,
especially the works which were his/her first songs and the ones which
made him/her famous, or some others which could be the singer‟s
favourite because of some reasons attached to it. It is unimaginable to
interview a singer and not have the singer to sing the said song, or not
to play his/her songs, so that the singer becomes comfortable and is
able to reflect and answer questions which relate to the song. It is
submitted that in a movie or an album the songs have a different
context in the sense that they contribute to the story being told, while
in the defendant‟s programme they have a different context
altogether, i.e., it is reflection on the life of the singer. It is submitted
that the defendant‟s (India TV‟s) use is actually covered by the
permitted act of fair dealing. It is further submitted that the use of
short cinematograph clips, or few seconds of any song (literary and
musical works), or sound recording by the defendant (India TV) in its
programmes is completely incidental to the main programme which is
either a chat show or a news programme or a current affairs
programme. It is also submitted that the defendant‟s use of the
copyright works would not harm the business interest of the plaintiffs
Super Cassettes and Yashraj Films, as the public, which is interested in
music, will not stop listening to music or stop buying CDs and cassettes
due to the defendant‟s usage.
19. In her oral submissions Ms. Pratibha Singh, learned counsel for
the defendant India TV, has raised an empassioned plea that the singer
who has recorded a song which has gone on to become a hit has a
sense of ownership over such a song, and that it would be very
unreasonable-to the point of being unfair and cruel to the said singer,
to say that he/she cannot sing the said song in a TV or other
interactive programme in front of an audience, only because the
copyright in the underlying literary and musical works resides in some
other person(s). She submits that there is a sense of belonging of the
song to the singer who has first recorded the song, which has become
popular and is identified with a particular singer. The said singer, she
submits, cannot be denied the right to sing the said song in a public
forum.
Discussion
20. By virtue of Section 13 of the Copyright Act, 1957, subject to the
provisions of the said section and the other provisions of the Act,
copyright subsists in the following classes of works, that is to say:
(a) original literary, dramatic, musical and artistic work ;
(b) cinematographic films and
(c) sound recording
21. The content and gamut of copyright vested by the Act in relation
to different kinds of works is defined in Section 14. Copyright means
the exclusive right, subject to the provisions of the Act, to do or
authorize the doing of any of the acts enumerated in sub-clauses (a) to
(e) in respect of the work, or any substantial part thereof. Therefore,
the right conferred by Section 14 is subject to the other provisions of
the Act, which would include Section 52. In relation to literary,
dramatic or musical work, not being a computer programme, copyright
means the exclusive right, inter alia, to reproduce the work in any
material form, including the storage of it in any medium by electronic
means; to perform the work in public, or communicate it to the public;
to make any cinematographic film or sound recording in respect of the
work. In the case of a cinematograph film, the copyright, inter alia,
means the exclusive right "to make a copy of the film including a
photograph of any image forming part thereof;" or "to communicate
the film to the public". The copyright in a sound recording entitles the
copyright holder to the exclusive right to, inter alia, communicate the
sound recording to the public.
22. Section 51 of the Act states when a copyright in a work is
infringed. It, inter alia, states that "copyright in a work shall be
deemed to be infringed-(a) when any person, without a licence granted
by the owner of the copyright or the Registrar of Copyrights under this
Act, or in contravention of the conditions of a licence so granted or of
any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act
conferred upon the owner of the copyright, ......".
Therefore, the question which arises for consideration is, whether,
India TV has done anything, the exclusive right to do which is, by the
Act, conferred upon the owner(s) of the copyright i.e., in relation to the
literary and musical works which are embodied in songs, i.e., the sound
recordings, and the cinematograph films in which the plaintiffs Super
Cassettes and Yashraj Films own the copyright.
23. Copyright is a statutory right, and no person is entitled to claim
copyright or any similar right in any work, otherwise than in
accordance with the provision of the Act. (See Section 16). Therefore,
whatever rights are claimed by the parties, must spring from the Act
and there are no equitable rights which either party can claim under
the law of copyright. I, therefore, have no hesitation in rejecting the
argument of Ms. Pratibha Singh that the singer has an independent
right to perform his/her recorded song on a public stage without
obtaining the licence from the copyright holder in the original literary
and musical works. There is no equitable right, which inheres in the
singer of the song, to perform the song in a public forum, only because
it may be the same singer who may have recorded the song initially,
which may have become popular.
24. For the same reason, the defence of India TV that, the use by the
defendant of the songs/sound recordings or cinematograph films- in
which Super Cassettes or Yash Raj Films own the copyright, is not in
the same context, or that it does not affect the business of the two
plaintiffs is also rejected.
25. If the defendant India TV considers the performance of the
songs, which embody the literary and musical works, or the playing of
the sound recordings and cinematograph film necessary for the
purpose of its programmes, either it should obtain the requisite licence
from the copyright owners and then use the same, or establish that its
use is saved by, and falls within the scope of the usage permitted by
Section 52 of the Act. Without obtaining the requisite licence, only for
making its programmes more enjoyable, informative, attractive and
complete, the defendant India TV cannot unauthorisedly use either the
songs(literary and/or musical works) or the sound recordings and
cinematograph films in which the copyright vests in another person,
unless, as aforesaid, such user can be brought under the exceptions
contained in Section 52 of the Act.
26. Admittedly, the defendant India TV has not obtained any license
from the plaintiffs Super Cassettes or Yash Raj Films. It is therefore
clear that, prima facie, the defendant (India TV) would succeed in
defending the two suits filed by Super Cassettes and Yashraj Films, and
in its own suit CS(OS) 1706/2006, if it succeeds in making out a case
falling either under Section 52(1)(a) or one falling under Section 52
(1)(b) of the Act. The relevant part of Section 52 of the Copyright Act
reads as follows:-
"(1) The following acts shall not constitute an infringement
of copyright, namely:-
(a) a fair dealing with a literary, dramatic, musical or
artistic work (not being a computer programme) for the
purposes of -
[(i) Private use including research;]
(ii) Criticism or review, whether of that work or of any other
work; ................................................................................
(b) a fair dealing with a literary, dramatic, musical or
artistic work for the purpose of reporting current events-
(i) in a newspaper, magazine or similar periodical; or
(ii) by [broadcast] or in a cinematograph film or by
means of photographs.
[Explanation-The publication of a compilation of addresses
or speeches delivered in public is not a fair dealing of such
work within the meaning of this clause;]"
27. Before I proceed to deal with the case law cited by the parties
and examine the position on facts, I think it appropriate to make a few
preliminary observations according to my understanding of the
statutory position on a plain reading of Section 52 of the Act. What
Section 52(1)(a) permits is that the literary, dramatic, musical or
artistic work may be reproduced without fear of infringement of
copyright in such works, if such reproduction is a fair dealing of the
copyright work in question, for the purpose of criticism or review
whether of that work or any other work. Therefore, firstly it has to be
"fair dealing" of the work in question. This means that the dealing with
the copyrighted work is not an unfair dealing. Only that part of the
literary, dramatic, musical or artistic work may be utilized for the
purpose of criticism or review, which is absolutely necessary, and no
more. The purpose - ostensibly or obliquely, should not be to ride
piggy back on the work of another. The focus of attention, and interest
of the producer/author of the work and the viewer/listener should not
be the work of another, but the work created by the person who may,
bona fide be using the work of another for the specific purpose of
criticism or review of that work, or of any other work. The work of
another cannot be used for any other purpose. The copyright
protected work of another cannot be used out of context. There has
to be an intellectual input and an original mental exercise undertaken
by the person bona fide lifting or copying the literary, dramatic,
musical or artistic work, which should involve either the criticism or
review of the lifted/copied work, or of any other work. Copying of the
work of another for any other purpose, such as, to make one‟s own
programme more interesting, attractive or enjoyable is not permitted.
The underlying theme and focus of; and, in substance, the new work
should necessarily be an exercise to either criticize or review either the
bona fide copied work, or any other work. A person cannot, in the
name of "fair dealing", lift or copy literary, dramatic, musical or artistic
work of another to such an extent that it ceases to be a "fair dealing"
and becomes a blatant act of copying the work of another.
28. Section 52(1)(b) saves from the charge of infringement, a fair
dealing with literary, dramatic, musical or artistic work for the purpose
of reporting current events, inter alia, by broadcast. As in clause (a), in
clause (b) as well the expression "fair dealing" is used. Therefore, only
so much of the work, as is absolutely necessary, can be used and no
more. The literary, dramatic, musical or artistic works which are used,
should have relevance to, and connection with the current event which
is sought to be reported. Any such work, which is unrelated to the
current event sought to be reported, cannot be made as an excuse to
exploit the copyrighted work of another. The explanation to clause (b)
which, inter alia, states that the publication of a compilation of
speeches delivered in public is not a fair dealing of such work within
the meaning of clause (b), is indicative of the legislative intent in
evolving the yardstick to be applied in each individual case.
29. The issue hotly debated by the parties before me is whether
sound recordings and cinematograph films also can be the subject
matter of fair dealing for the purpose of criticism or review under
Section 52(1)(a), or the subject matter of fair dealing for the purpose of
reporting current events by broadcast under Section 52(1)(b). While it
is the submission of the learned counsel for the plaintiffs Super
Cassettes & Yash Raj Films that neither sound recordings, nor
cinematograph films are covered by Sections 52(1)(a) or 52(1)(b), the
submission of learned counsel for the defendant India T.V is to the
contrary. I consider it appropriate to set out the submission of Ms.
Pratibha Singh, counsel for India T.V first, and thereafter to set out the
response of learned counsel for Super Cassettes and Yashraj Films on
this aspect.
Defendant India TV's submission on Section 52 of the Act
30. The submission of learned counsel for India TV is that the
purpose of copyright is to provide a limited monopoly to the
authors/creators of work in order to encourage their efforts. Such
monopoly is not unfettered especially when it conflicts with an
overriding principle interest. She submits that copyright law, the world
over, balances the rights of the authors/creators and casts a duty upon
them to share the rights they reserve to use of their works - especially
for the purpose of news reporting; for reporting of current events; for
educational purposes; for private use, etc., subject to fair dealing
provisions of each country. It is argued that cinematograph films and
sound recordings are not original literary, dramatic, musical or artistic
works. Reference is made to Section 13(1)(a) which uses the word
„original‟ before the words „literary, dramatic, musical and artistic
works‟ and a distinction is drawn with Clauses (b) & (c) of Section 13(1)
of the Act. It is submitted that cinematograph films and sound
recordings are based upon one or more pre-existing works which
eventually can be categorized as „original‟ works under Section
13(1)(a) of the Act. Cinematograph films and sound recordings are
„derivative works‟. Reference is made to Entertainment Network
(India) Limited Vs. Super Cassettes Industries, (2008) 13 SCC 30,
in support of this proposition and to submit that Clauses (b) & (c) of
Section 13(1) protect derivative works. Reference is also made to the
definition of the term „derivative works‟ provided in the American Law
which is defined to include, inter alia, motion picture version and sound
recording.
31. After laying down the aforesaid foundation, the submission of the
learned counsel for the defendant India TV is that the cinematograph
films and sound recordings being derivative works of original literary,
dramatic, musical or artistic works, though not specifically, but are
impliedly included in Section 51(1)(a) and 52(1)(b) of the Act. The
defendants‟ logic for this submission is that original literary, dramatic,
musical or artistic works cannot be granted lesser amount of protection
than their derivatives.
32. It is next contended that the exclusion of „cinematograph films‟
and „sound recordings‟ from Section 52(1)(a) and 52(1)(b) of the Act
would lead to absurdity and confusion. It is submitted that the Court
should step into the shoes of the Legislature and give logical
interpretation to these provisions. Reliance is placed in this regard on
Entertainment Network (India) Limited (supra). It is argued that
in this decision the Supreme Court held that only because a Statute is
not clear and explicit, the Court cannot fold its hand and express its
helplessness regarding it. It is submitted that when the literary
meaning of a Statute leads to absurdity its literary interpretation
should be avoided. It is also submitted that there is no legislative
intent behind exclusion of these two classes of works from the concept
of fair dealing. Reference is also made to Section 2(1)(i) of the
Copyright Act, 1911, which deals with the aspect of fair dealing in
relation to „any work‟.
33. Learned counsel for the defendant India TV has also sought to
place heavy reliance on the Copyright (Amendment) Bill, 2010 which,
inter alia, proposes to amend Section 52 of the Act to make the fair use
defence available to all works including cinematograph films and sound
recordings. The proposed amendment replaces the words „literary,
dramatic, musical or artistic work‟ used in Section 52(1)(a) and
52(1)(b) with the expression „any work‟. It is argued that the
amendment is clarificatory and does not seek to make a substantive
change in the law as it exists at present. It is argued that the primary
purpose of Clause 31 of the Bill is to provide that works which are
stored in an electronic medium for the purposes of fair use do not
constitute infringing copies. The purpose of the amendment is to
exclude the process of „caching‟ from the charge of infringement.
34. Ms. Pratibha M. Singh has also submitted that India is a signatory
to the Berne Convention and is, therefore, required to follow the basic
standards of copyright protection, its enforcements and restrictions on
the exercise of rights as laid down in this international treaty. Article
10(bis) of the Berne Convention, Clause 2 is relied upon, which reads
as follows:
"(2) It shall also be a matter for legislation in the countries
of the Union to determine the conditions under which, for
the purpose of reporting current events by means of
photography, cinematography, broadcasting or
communication to the public by wire, literary or artistic
works seen or heard in the course of the event may, to the
extent justified by the informatory purpose, be reproduced
and made available to the public."
35. It is argued that a principle country by way of legislation can
determine conditions for such uses (such as issuance of compulsory
licenses or by providing that deminimis or accidental use does not
amount to infringement). It is submitted that to say Article 10 bis (2)
takes cinematograph films and sound recordings out of the purview of
the fair dealing would be absurd and illogical. Learned counsel for the
defendant India TV submits that cinematograph films and sound
recordings are covered by the fair dealing exception in various
countries such as United States of America, United Kingdom, France,
Australia, Canada, etc.
36. Ms. Singh further submits that Article 19(1)(a) of the Constitution
of India provides the fundamental right to freedom of speech &
expression. The Copyright Act, 1957 does not define the term „fair
use‟ or „fair dealing‟ and the same should be understood keeping in
mind the fundamental right to freedom of speech protected by Article
19(1)(a) of the Constitution of India. It would not be consistent with
the Scheme of Article 19(1)(a) of the Constitution of India, if any
incidental or deminimis use of the cinematograph films or sound
recordings is not given the fair use defence. The right of news
channels to use clippings of cinematograph films and sound recordings
for the purpose of reporting news and current affairs is a part of the
right conferred by Article 19(1)(a). Imposing of fetters in this right is
prohibited, except in situations of national security, etc. Learned
counsel for the defendant cites the following illustrations in support of
her aforesaid submission:
"a. Song `X‟ displays or uses words which are
impermissible and gets banned by a Censor body- as part
of news, it would be permissible to use the least amount of
the song only to identify the song to the viewer;
b. A cinematograph film is made which addresses a
new theme and it wins a large number of awards- As part
of the news reporting an award, it would be fair dealing to
show a small clipping of the film."
37. It is argued that for usage of reporting current events, if news
channels are obliged to obtain licenses, then the entire fair use
doctrine would be set at naught. It is argued that fair use is a
statutorily „permissible‟ use. It is only for the impermissible use that a
license needs to be taken. It is submitted that an interpretation of
Sections 52(1)(a) and 52(1)(b) that cinematograph films and sound
recordings are not covered under the fair use exception would lead to
a situation where even a deminimis use of such works shall be subject
to obtainment of licenses from the respective copyright owners. It is
argued that the plaintiff‟s submission in favour of excluding
cinematograph films and sound recordings from the scope of Sections
52(1)(a) and 52(1)(b) ignores public interest and conflicts with the
whole purpose of copyright law. Reliance is placed on ESPN Star
Sports vs. Global Broadcast News Ltd., (2008) 38 PTC 477 (Del.)
(DB), to submit that fair dealing is a question of fact and has to be
determined on case by case basis. It is submitted that this Court has
held that news channels are within their rights to reasonably use
footage of cricket matches for programmes based on cricket or cricket
matches.
38. Reliance is placed on the following decisions of the American
Courts to submit that the Courts have granted fair use protection to
cinematograph films and sound recordings:
(a) Campbell Vs. Acuff-Rose Music, 510 U.S. 569 (1994);
(b) Sony Corp. of America Vs. Universal City Studios,
Inc., 464 U.S. 417 (1984);
(c) Monster Communications Inc Vs. Turner
Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y.
1996); and
(d) EMI Records Ltd. and Capitol Vs. Premise Media
Corporation, L. P 2008 N.Y. Misc. LEXIS 7485 (N.Y. Sup.
Ct. Aug.8,2008)
Plaintiffs Super Cassettes and Yash Raj Films submission on
Section 52 of the Act.
39. On the other hand, the submission of learned counsel for the
plaintiff Super Cassettes and Yashraj Films is that the exceptions to the
exclusive rights of copyright owner in literary, dramatic, musical or
artistic work which are provided, inter alia, in Section 52(1)(a) and
52(1)(b) of the Act, do not extend to the rights of the copyright owners
in a cinematograph film and sound recording. It is submitted that
Section 52(1)(a) & 52(1)(b) of the Act specifically limit the exceptions,
inter alia, for criticism and review and for reporting current events to
literary, dramatic, musical or artistic works (not being computer
programmes). These exceptions do not extend to cinematograph films
and sound recordings. The legislative intent is clear from the reading
of Section 52 of the Act in its entirety. It is argued that the Act vests
copyright in different kinds of work grouped into 3 different classes in
Section 13(1) of the Act, namely:
"(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording."
40. Under Section 14 of the Act, different rights subsist in respect of
each kind of work, according to nature of the work and the means by
which it can be exploited. Correspondingly, under Section 52 different
exceptions are carved out for different situations affecting different
kinds of work. The individual exceptions in Section 52 are not blanket
exceptions extending to all works. It is argued that the exceptions in
Section 52 are carefully crafted and are use-specific as well as work-
specific; each clause makes clear both - the type/class over which it
applies, and the particular exempted use of such work.
41. It is argued that the exceptions as stated in Section 52 are very
specific, necessarily so to avoid ambiguity as between rights (which
must be stated in broader terms), and exceptions.
42. It is argued that literary, dramatic, musical and artistic works fall
under one of the three classes of works in which copyright subsists
under Section 13(1) of the Copyright Act viz. the class referred to in
Section 13 (1) (a). Cinematograph Films are a distinct class under
Section 13(1) (b) and sound recordings a third, under Section 13 (1)
(c).
43. The exclusive rights conferred on each kind of work by Section
14 are tailored to match the possible means by which that kind of work
can be exploited. For example, the rights of translation and adaptation
cannot arise in the case of sound recordings and cinematograph films,
hence are conferred only in respect of literary, musical and dramatic
works. Similarly, the exceptions in respect of each kind of work are
carved out according to the nature of the work, and the kinds of
situation in which it may serve the public.
44. It is submitted that cinematograph films and sound recordings
being derivative works, are not inferior class of work. Merely because
they are derivative works it does not mean that such works can be
used wherever the use of the underlying works is permitted by law. It
is submitted that a sound recording is not merely a means of
presenting the underlying literary or musical works, and nothing more.
Similarly, a cinematograph films is not merely a means of presenting
the underlying dramatic, literary and musical works. Each sound
recording is independently created and the creation of the sound
recording requires independent skill and expertise. It is submitted,
similarly, the creation of a cinematograph film requires large
investments and financial risks. It involves inputs such as casting,
screening, photography, editing, music, etc. It is submitted that sound
recordings are referred to and provided for in clauses (i) (j) (k), (z) and
(za) of sub-section (1) of Section 52. In all these instances, except "(i)",
the exception in question applies only to sound recordings and not to
any other class of works. In other cases, sound recordings are not
referred to. The omission of any reference to sound recordings in
clauses (a) and (b) of the same sub-section is very clearly the policy of
the legislature which is rational and justifiable; there is absolutely no
reason to suppose it to be an inadvertent omission.
45. It is further submitted that cinematograph films are referred to in
clauses (u) and (y) of Section 52(1). In these clauses, again, the
exemption is created for the benefit of the film producer, not for users
of the film. It is reasonable and explicable that the legislature has seen
fit to restrict the exceptions in respect of cinematograph films so
tightly, the investment in films being so high.
46. The plaintiffs further argued that the Copyright (Amendment)
Bill, 2010 is yet to be enacted. Unless it is enacted, reliance thereon
cannot be placed by the defendant India TV on account of the mere
possibility that a future legislative decision may modify the existing
legal position reflected in Section 52 of the Act.
47. The plaintiffs also place reliance upon Section 39 of the Act
which was inserted in its present form by Amending Act No. 38 of
1994. This provision specifically provides exception to the broadcast
reproduction right conferred by Section 37 of the Act. Section 37 was
also introduced in the Act by the same amendment. Section 39, inter
alia, provides that "No broadcast reproduction right or performer‟s
right shall be deemed to be infringed by (a) ..... ..... ..... ..... (b) the use,
consistent with the fair dealing, of excerpts of a performance or of a
broadcast in the reporting of current events or for bona fide review,
teaching or research; or (c) ..... ..... ..... ..... which do not constitute
infringement of copyright under Section 52". It is further submitted
that even though Section 52 was extensively amended by Amending
Act 38 of 1994, yet no amendment was made to extend the fair
dealing exception to cinematograph films and sound recordings. It is
submitted that while interpreting a legislative provision, the Court only
interprets a law and cannot legislate upon it. The Court would not read
anything into a statutory provision or remit a provision which is plain &
unambiguous. Attention must be paid to what has been said and also
to what has not been said. Reference is made to Nasiruddin Vs. Sita
Ram, (2003) 2 SCC 577. It is submitted that where the words are clear
and there is no obscurity, and there is no ambiguity and the intention
of the legislature is clearly conveyed, there is no scope for the court to
take upon itself the task of amending or altering the statutory
provisions.
48. Learned counsel for the plaintiffs Super Cassettes and Yashraj
Films submit that on the facts of the ESPN judgment [ESPN Star
Sports Vs. Global Broadcast News, 2008 (38) PTC 477 (Del)] which
the Defendants rely on, the issue considered was with respect to the
exception contained in Section 39 to the broadcast reproduction right.
It is submitted that in the case of broadcast of cricket matches,
although the visual recording of the cricket match becomes a
cinematograph film, it does not become the film of any underlying
copyrighted work but only of certain events. In the present case, the
Plaintiff‟s cause of action is the infringing use of its copyrighted works
by the Defendants‟ broadcasting of them, which is a completely
different situation.
49. It is also argued that instances of foreign legislation in which
sound recordings and/or films are covered under similar exceptions are
of no relevance to the present suit or to the interpretation of the Indian
statute.
50. It is submitted that this Court is under no obligation to apply any
foreign statute.
51. Submissions have also been made by referring to and relying
upon the International Copyright Order, 1999, the Berne Convention
and the TRIPS Agreement. I am, however, not reproducing the same
as they do not appear to be of any relevance for the present
discussion.
52. Learned counsel for the plaintiff also submits that the defendants
arguments founded upon Articles 19(1)(a) or 19(1)(g) of the
Constitution of India is misplaced. It is argued that licenses are freely
available and the defendant India TV has been offered to obtain the
licenses. The plaintiffs Super Cassettes and Yashraj Films have
arrangements in place to issue licences for the use of its copyrighted
works and provide such licenses on demand to all who require them.
These constitute a significant and substantial part of the plaintiffs
business. The defendants India TV is also a commercial organization
which earns substantial revenue from the exploitation of the
intellectual property of Super Cassettes and Yashraj Films by, what it
claims to be, criticism, review and news reporting. Articles 19(1)(a) or
19(1)(g) of the Constitution does not allow the defendant India TV to
freely use the copyrighted works of the two plaintiffs, and does not
oblige the two plaintiffs to grant license without payment of license fee
for the use and exploitation of the plaintiff copyrights. The restrictions
imposed on the defendants right under Article 19(1)(a) and 19(1)(g) by
the Copyright Act are reasonable restrictions.
53. Reference is placed to the decision of the English Court of
Appeals in Ashdown v. Telegraph Group Limited, (2002) RPC 5,
wherein the Court considered the conflict between the freedom of
expression and the statutory obligation to obtain a license from a
copyright owner by reference to Article 10 of the European Human
Rights Declaration. It is also submitted that, in any event, for the
purpose of „fair dealing‟, for the purpose of criticism, review and
reporting of current events, it is not necessary to reproduce a
substantial part of any work.
Discussion on Section 52 of the Act
54. As I have already observed herein above, copyright is a
statutorily conferred right. Therefore, to the extent that it is
specifically vested in the copyright holder, it cannot be denied by
reference to some general principle, as contended by the defendant.
Just as the extent of the copyright vested in a party is specifically
prescribed in the Act, the exceptions thereto have also been
specifically prescribed in the Act.
55. There is no quarrel with the proposition that cinematograph films
and sound recordings are derivative works, which are eventually
derived from original literary, dramatic, musical and artistic works.
That does not make copyright in cinematograph films and sound
recordings inferior. In Entertainment Network (India) Ltd. (supra),
in para 41, the Supreme Court has held that only because the term for
holding copyright under section 27 (in relation to a copyright in sound
recording) is different from the term of the copyright in relation to
original literary, dramatic, musical and artistic works, the same would
not mean that the right of the copyright owner in sound recordings is
somewhat inferior. Even though the copyright in relation to derived
work such as cinematograph films and sound recordings operate in a
relatively restrictive field, when compared to the copyright in original
literary, dramatic, musical and artistic works, to the extent that the
said copyright in derived work is vested by the Act, the same operates
with full force and vigour. The decision of the Supreme Court in
Entertainment Network (India) Ltd. relied upon by the defendant,
India TV in no way advances their submission that cinematograph films
and sound recordings are covered by Sections 52(1)(a) and 52(1)(b) of
the Act.
56. I do not accept the submission of Ms. Pratibha Singh that
cinematograph films and sound recordings being derivative works of
original literary, dramatic, musical and artistic works are impliedly
included in Section 52(1)(a) and 52(1)(b) of the Act. There is no scope
for any such implication being drawn in the light of the statutory
scheme which emerges on a plain reading of Section 52 of the Act.
Cinematograph films and sound recordings are recognized by Section
13 as separate classes of derived works, wherein copyright subsists.
As submitted by the plaintiff, Super Cassettes and Yashraj Films,
Section 52 carefully and exhaustively enlists various actions which
would not constitute infringement of copyright in different classes of
works and the limits on such use. Clauses (a) and (b) specifically deal
with literary, dramatic, musical and artistic works and also specify the
purposes for which they may specifically be put to use without inviting
an action for infringement. Clauses (aa) (ab) (ac) and (ad) specifically
deal with the use to which computer programme can be put. The
literary, dramatic, musical and artistic works are also dealt with in
clauses (c) and (d). Pertinently, clause (e) only deals with literary,
dramatic or musical works, but does not deal with artistic works.
Clause (f) deals only with literary or dramatic works. The aforesaid
clearly shows that the Parliament deliberately and consciously chose
the class of works in relation to which it permitted the exploitation of
the copyright for specific purposes only.
57. Similarly, in relation to sound recordings, it is only clauses (i), (j),
(k) and (za) which apply. There is merit in the plaintiff‟s submissions
that exceptions in Section 52 are carefully crafted and are use-specific
as well as work-specific. Each clause makes clear both - the type and
class of work to which it applies, and the particular exempted use of
such work. There is very good reason for not including cinematograph
films and sound recordings in clauses (a) and (b) in Section 52(1) of
the Act. Being derived works, cinematograph films and sound
recordings involve much greater financial investment when compared
to investment that may have been made in the creation of original
literary, dramatic, musical and artistic work. The author of
cinematograph films and sound recordings is not only required to
obtain licenses from the owners of such original literary, dramatic,
musical and artistic work before embarking upon the creation of the
derived works, i.e., the cinematograph films and sound recordings, he
is also required to undertake the exercise of putting together such
works by employment of skilled artists, musicians, cameraman,
producers and directors etc. It is to protect the financial investment
that go into making of cinematograph films and sound recordings -
which enjoy far greater public appeal and attraction and, therefore,
attract more eye balls and ears than the original literary, dramatic,
musical and artistic works, that the Parliament does not permit an
unlicensed use of such works even for the purpose of criticism or
review or reporting of current events.
58. I also do not accept the submission of Ms. Singh, learned counsel
for the India TV that the exclusion of cinematograph films and sound
recordings from Section 52(1) (a) and 52 (1) (b) leads to absurdity or
confusion. Neither there is any absurdity nor any confusion in the
legislative scheme found in Section 52 of the said Act.
59. There is no merit in the submission of Ms. Pratibha Singh that the
denial of an unrestricted right to use cinematograph films and sound
recordings for the purpose of criticism or review of the said works, or of
any other works, or for the purpose of reporting current events would
infringe the defendant, India TV‟s fundamental right guaranteed under
Article 19(1)(a) of the Constitution of India. i.e the right conferred on all
citizens to the freedom of speech and expression. I fail to understand,
by requiring that India TV obtains license for exploitation of
cinematograph films and sound recordings from the copyright holders
in such works, how is there any curtailment of the right of the
defendant, India TV or its shareholders to the freedom of speech and
expression? India TV is free to exercise its right to freedom of speech
and expression, but that cannot mean that the defendant, India TV can
infringe the fundamental rights vested by Article 19(1) and Article
19(1)(g) in others. The owners of the copyright in the cinematograph
films and the sound recordings also have fundamental right under
Articles 19(1)(a) i.e the right to freedom of speech and expression and
under Article 19(1)(g) i.e to practice any profession, or to carry on any
occupation, trade or business. The exclusive rights conferred by the
Act on the copyright owners of cinematograph films and sound
recordings is entitled to as much protection as the right of the
defendant India TV to its freedom of speech and expression.
60. In Railway Board Representing The Union of India V.
Niranjan Singh, (1969) 1 SCC 502, the Supreme Court considered the
issue whether the order of the General Manager which prohibited
holding of meetings within the railway premises was violative of Article
19(1)(a) to (c) of the Constitution. The Supreme Court held that the
said direction of the General Manager did not deprive the workers any
of the freedoms guaranteed to them under Article 19(1) of the
Constitution. It merely prohibited them from exercising any of them
within the railway premises. The Supreme Court held that there was no
fundamental right for anyone to hold meetings in government
premises. The contents of freedoms guaranteed under Article 19(a), (b)
and (d) of the Constitution do not include the right to exercise them in
properties belonging to others. In LIC vs. Professor Manubhai D.
Shah, AIR 1993 SC 171, while dealing with the right conferred under
Article 19(1)(a) and the restriction imposed by Article 19(1)(2) of the
Constitution of India, the Supreme Court held:
"8................. Every free citizen has an undoubted right to
lay what sentiments he pleases before the public; to forbid
this, except to the extent permitted by Article 19(2), would
be an inroad on his freedom. This freedom must, however,
be exercised with circumspection and care must be taken
not to trench on the rights of other citizens or to jeopardise
public interest. It is manifest from Article 19(2) that the
right conferred by Article 19(1)(a) to subject to imposition
of reasonable restrictions in the interest of, amongst
others, public order, decency or morality or in relation to
defamation or incitement to an offence. It is, therefore,
obvious that subject to reasonable restrictions placed
under Article 19(2) a citizen has a right to publish, circulate
and disseminate his views and any attempt to thwart or
deny the same would offend Article 19(1)(a)."
61. Similarly, defendant India TV cannot seek to exercise its rights
guaranteed under Article 19(1)(a) by encroaching upon or infringing the
rights conferred by the Act upon the owners of copyright in
cinematograph films and sound recordings. The defendant India TV is
not prevented from airing its views by way of criticism or review or for
reporting current events in relation to a cinematograph film or a sound
recording without actually utilizing any part of it. However, if it wishes
to, and chooses to utilize any part of the copyrighted works which are
cinematograph films and sound recordings, it must comply with the
provisions of the Act.
62. I may also note that the defendant India TV has not challenged
the constitutionality of any provision of the Act either in its defence to
the two suits filed by Super Cassettes and Yashraj Films or in its own
suit. The obligation cast by the Act upon India TV to obtain licences for
the use of copyrighted derivative works for the purpose of criticism,
review of the works or for reporting current events cannot be labeled as
a restriction, much less an unreasonable restriction on the exercise of
the fundamental right guaranteed under Article 19(1)(a) or 19(1)(g) of
the Constitution. In my view the argument founded upon Article
19(1)(a) advanced by Ms. Pratibha Singh is a red herring. I reject the
same.
63. Pertinently, Section 31 of the Act entitles any person to approach
the Copyright Board with a complaint, during the term of copyright in
any Indian work (which includes, a cinematograph film or a sound
recording made or manufactured in India), which has been published or
performed in public, that the owner of the copyright in the work has,
inter alia, refused to allow communication to the public by broadcast of
such work (Section 31(1)(b)). Upon such an application being made,
the Copyright Board, upon being satisfied, may direct the Registrar of
Copyrights to grant to the complainant a licence to, inter alia,
communicate the work to the public by broadcast on payment of
compensation to the owner of the copyright.
64. In the present case the plaintiffs, Super Cassettes and Yashraj
Films have expressed their willingness to grant licence to the defendant
India TV for use of their copyrighted works, namely, cinematograph
films and sound recordings. It is also their case that other broadcasters
are, in fact, obtaining licences and it is only the defendant India TV
which continues to use their copyrighted derivative works without
obtaining any licence. It is not the case of the defendant India TV that
the terms on which the plaintiffs, Super Cassettes and Yashraj films
offer their licences are onerous to the extent that they tantamount to a
virtual denial of the licences. Even if such were the case, the remedy
for India TV lies in approaching the Copyright Board under Section 31 of
the Act. The defendant India TV cannot seek to bypass the said
procedure and use the derivative copyright works of the plaintiffs,
Super Cassettes and Yashraj Films without obtaining a valid licence.
65. Reliance placed by Ms. Singh on the copyright (Amendment Bill,
2010) and in particular Clause 31 thereof (which proposes to amend
Section 52 of the Act to provide for fair dealing with any work for
purposes of, inter alia, criticism, review or reporting current events), in
my view is misplaced. The said bill is yet to be enacted and after
enactment, to be enforced. It remains to be seen whether or not the
said bill, in its present form, is passed by both houses of Parliament;
receives the assent of the President to become an Act; and, thereafter
enforced. The provisions of the Act as it presently stands could not have
been clearer. In my view there is absolutely no ambiguity and Sections
52(1)(a) and 52(1)(b), without doubt do not apply to cinematograph
films and sound recordings.
66. Reliance placed by Ms. Singh on Entertainment Network
(India) Ltd (supra) to submit that this Court should, if necessary,
legislate so as to prevent absurd results arising from the interpretation
of the statute is misplaced in the facts of the present case for the
reasons, I have already indicated above. There is neither any
ambiguity in the statute which is plain and clear upon the adoption of
its grammatical meaning, nor can it be said that the adoption of the
grammatical meaning results in any absurd consequences. The only
consequence of adoption of the interpretation that I propose to adopt is
that the defendant India TV would be compelled to obtain licences in
relation to cinematograph films and sound recordings from the
copyright holders before utilizing the same for the avowed purpose of
criticism or review of the said works, or of any other works or for the
purpose of reporting current events.
67. In Entertainment Network (India) Ltd (supra), the Supreme
Court was interpreting Section 31 of the Act. The copyright holder in
the sound recording had granted licence to one FM channel to
broadcast the sound recordings. A similar licence claimed by another
broadcaster was refused. The Supreme Court held that the grant of
licence to one broadcaster does not preclude another broadcaster to
obtain a similar licence and the copyright holder in the sound
recordings cannot deny the same licence to other broadcasters on the
plea that it has already granted a licence to one broadcaster. It was in
that context that the Supreme Court invoked New India Assurance
Co. Ltd V. Nusli Neville Wadia, (2008) 3 SCC 279, wherein it was
held that if literal interpretation gives rise to an anomaly or absurdity
which must be avoided; the Superior Court to interpret a statute in a
reasonable manner must place itself in the chair of a reasonable
legislator/author.
68. However, as I have already discussed, there is neither any
anomaly or absurdity in the interpretation that I propose to adopt in
respect of Section 52(1)(a) and 52(1)(b) of the Act.
69. I may also refer to the decision of the Supreme Court in J.P.
Bansal v. State of Rajasthan, (2003) 5 SCC 134, wherein it is held in
paras 14 and 16 as follows:
"14. Where, however, the words were clear, there is no
obscurity, there is no ambiguity and the intention of the
legislature is clearly conveyed, there is no scope for the
court to innovate or take upon itself the task of amending
or altering the statutory provisions. In that situation the
Judges should not proclaim that they are playing the role of
a law-maker merely for an exhibition of judicial valour.
They have to remember that there is a line, though thin,
which separates adjudication from legislation. That line
should not be crossed or erased. This can be vouchsafed
by "an alert recognition of the necessity not to cross it and
instinctive, as well as trained reluctance to do so". (See:
Frankfurter, Some Reflections on the Reading of Statutes in
"Essays on Jurisprudence", Columbia Law Review, P.51.)"
"16. Where, therefore, the "language" is clear, the
intention of the legislature is to be gathered from the
language used. What is to be borne in mind is as to what
has been said in the statute as also what has not been
said. A construction which requires, for its support, addition
or substitution of words or which results in rejection of
words, has to be avoided, unless it is covered by the rule of
exception, including that of necessity, which is not the case
here. (See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v.
Custodian of Vested Forests (AIR 1990 SC 1747 at p. 1752);
Shyam Kishori Devi v. Patna Municipal Corpn. (AIR 1966 SC
1678 at p. 1682); A.R. Antulay v. Ramdas Sriniwas Nayak
(1984) 2 SCC 500, at pp. 518, 519)]. Indeed, the Court
cannot reframe the legislation as it has no power to
legislate. [See State of Kerala v. Mathai Verghese (1986) 4
SCC 746, at p. 749); Union of India v. Deoki Nandan
Aggarwal (AIR 1992 SC 96 at p.101)"
70. During the course of her submission, Ms. Singh made an
impassioned plea that the interpretation adopted by this Court would
even curtail the right of defendant India TV as a broadcasting
organization to report current events such as cricket matches and
important news related thereto by showing excerpts or clippings
therefrom. I do not find any merit in this submission because such a
right is specifically preserved under section 39(b) of the Act, provided
the use is consistent to fair dealing.
71. I am also not impressed by the submission of Ms. Singh that,
because the laws of various other countries permit the use of
derivative works for purposes of criticism, review of the said works or
of other works or for purposes of reporting current events without
having to obtain a license from the concerned copyright owner, the
same legal position should obtain in India. The Indian law as it
presently stands is amply clear and does not admit of any ambiguity.
The language used in the respective statutes of the aforesaid countries
is starkly different from that used in the Act, which this Court is bound
to implement. Therefore, the said laws cannot be brought in aid by the
defendant, India TV. For the same reason, I do not consider it
necessary to deal with the decisions of American Courts relied upon by
the defendant, wherein the fair use defence in relation to
cinematograph films and sound recordings has been upheld.
72. In ESPN Star Sports (supra), a Division Bench of this Court held
that this Court is not bound by WIPO or any other such agreements,
and we must interpret the law in accordance with the legislative intent
available from the Constitution of India or the statute enacted by the
Indian Parliament. The Court may take resort to such conventions or
agreements only when there is a vacuum in the domestic laws.
Reference was also made to Visaka Vs. State of Rajasthan, AIR
1997 SC 3011.
73. I am also not impressed by the defendants submission that the
proposed amendment in the Copyright Act, insofar, as, it proposes to
extend the fair use/fair dealing exception to cinematograph films and
sound recordings is merely clarificatory. I have already observed that
on a plain reading of section 52(1)(a) and 52(1)(b), it cannot be said
either cinematograph films and sound recordings are covered by those
provisions.
74. Reliance placed on Clause 10 of the Berne Convention also
appears to be misplaced. Article 10 bis. (1) of the Berne Convention,
inter alia, deals with the aspect of broadcasting of articles published in
newspapers or periodicals on current economic, political or related
topics, and of broadcast works of the same character. The present
cases do not fall in this category. A close scrutiny of Article 10 bis (2)
shows that the same pertains only to literary or artistic works which
may be seen or heard in the course of a current event, which event is
reported by means of photography, cinematography, broadcasting or
communication to the public by wire. Article 10 bis. (2) states that the
countries of the Union shall legislate on the conditions under which
such literary or artistic works may be reproduced to the extent justified
by the informatory purpose. Therefore, clause 10 of the burn
convention relied upon by the defendant has no application in the
present context.
75. For the reason that cinematograph films and sound recordings
are not at all covered by section 52(1)(a) and 52(1)(b), I am also not
inclined to accept the submission of Ms. Singh that incidental or
deminimise use of such derivative works should be permitted for the
purposes of criticism, review and reporting of current events. It is not
even the plaintiffs case that such derivative works cannot be used for
purposes of criticism, review or reporting of current events. All that
they say is that the defendant should not infringe their copyright by
stoutly refusing to obtain the license from the plaintiff. By all means,
the defendant India TV can obtain a license and use the copyrighted
derivative work in terms of the license for purpose of criticism, review
of the said works, or of any other works and also for reporting current
events.
76. Therefore, on a plain reading of Section 52(1)(a) and 52(1)(b) it
would appear that the use of sound recordings or cinematograph films
by the defendant India TV, the copyright wherein is owned by the
plaintiffs Super Cassettes or Yashraj Films, in any of its programmes
would constitute infringement of their copyright in the sound
recordings or cinematographic films. The defence of India TV founded
upon Clauses (a) and (b) of Section 52(1) of the Act, in any event,
would be of no avail, as a sound recording cinematograph film cannot
be used for the purpose of criticism or review, whether of the
cinematographic film or of any other work, and it also cannot be used
for the purpose of reporting current events.
77. The only exception to the protection of copyright subsisting in a
cinematographic film is contained in Section 52(1)(i), which permits the
performance, in the course of the activities of an educational
institution, inter alia, of a cinematographic film, if the audience is
limited to the staff and students of the educational institution, the
parents and guardians of the students, and persons directly connected
with the activities of the institution. That is not the case in hand.
78. For all the aforesaid reasons, since, admittedly, the defendant
India TV has not obtained licenses from Super Cassettes and Yashraj
Films, the plaintiffs in respect of the cinematograph films and sound
recordings, admittedly, exploited by the defendant India TV, such user
of the plaintiffs copyrighted works tantamount to infringement thereof.
The same cannot be permitted to be perpetuated by the defendant
India TV in future.
79. I may now proceed to the deal with the argument that the use by
the defendant India TV of the copyrighted works of the plaintiffs
tantamount to "fair use" of such works. This submission has been
made by the defendant India TV, and opposed by the plaintiffs dehorse
the first submission of the plaintiffs that "fair use" defence is not
available in respect of cinematograph films and sound recordings
under sections 52(1)(a) and 52(1)(b) of the Act.
80. My learned brother Rajiv Shakdher, J has considered this issue in
the case of Super Cassette Industries Ltd. V. Hamar Television
Pvt. Channel I.A. No.12926/09 in CS(OS) No.1899/2009 and Super
Cassette Industries Ltd V. M/s Positiv Television Pvt. Ltd &
Anr. I.A. 13058/2009 in CS(OS) 1906/2009 decided on 24.05.2010
reported as (2011) 45 PTC 70 (Del). While doing so, he has
discussed a majority of the decisions cited before me by the parties
The factual background in these cases were more or less identical with
that found in the present cases. Super Cassettes Industries Ltd, (which
is a plaintiff in CS(OS) No.2282/2006 had alleged that the defendants
in the aforesaid two cases, namely M/s Hamar Television Network Pvt.
Ltd & Anr & M/s Positiv Television Pvt. Ltd were infringing the copyright
of the plaintiff by copying the songs and cinematograph films in which
the copyrights vested in the plaintiff. The defendants in the two suits
had raised a similar defence of fair use and fair dealing founded upon
Section 52(1)(a) and Section 52(1)(b) of the Act. The stand of the
defendant Hamar Television was that the broadcast of the copyrighted
works of the plaintiff ranged between 10 to 30 seconds except on a
few occasions where the duration was more than 30 seconds. The
maximum duration of the broadcast was 40 seconds and that too, not
in a single stretch. The use of the copyrighted works of the plaintiff
could not be dubbed as indiscriminate use of copyright for commercial
exploitation. The defendant placed reliance on the decisions reported
as ESPN Star Sports V. Global Broadcast News Ltd & Ors.,(supra)
and Hubbard & Anr. V. Vosper & Anr, (1972) 1 All. ER 1023. Apart
from the aforesaid, the following judgments were also cited from both
sides before the Court, which are also relied upon by the parties before
me.
a. ESPN Star Sports vs Global Broadcast News Ltd. &
ors. 2008 (38) PTC 477 (Del)
b. Hubbard and Anr vs Vosper & Anr. (1972) 1 All ER
c. Sony BMG Music Entertainment et al vs Jeol
Tenenbaum Case No. 07cv11446-NG dated 07.12.2009.
d. Hyde Park Residence Ltd vs Yelland (2000) R.P.C.
604;
e. Ashdown vs Telegraph Group Ltd (2002) R.P.C. 5
f. Associated Newspapers Group Plc vs News Group
Newspapers Ltd & Ors (1986) R.P.C. 515)
g. Fraser-Woodward Ltd vs British Broadcasting
Corporation & Anr (2005) EWHC 472]
h. Ladbroke (Football) Ltd vs William Hill (Football)
Ltd (1964) 1 All. E.R.465 ].
i. Hawkes and Son (London) Ltd. vs Paramount Film
Service Ltd. (1934) 1 Ch. 593;
j. Donald Irwin Robertson vs Batten, Barton, Durstine
& Osborn Inc. et al 146 F. Supp. 795
k. Baxter vs MCA Inc. 812 F.2d 421 (9th Cir. 1987)].
l. The Chancellor Masters and Scholars of the
University of Oxford PTC 385(Del);
m. Pro Sieben Media AG vs Carlton UK Television Ltd
(1999) F.S.R. 610;
n. BDA Private Limited v. Paul P.John & Anr. 2008(37)
PTC 569( Del.)
o. Pfizer Enterprises & Anr. v. Dr.H.R.Manchanda &
Anr. CS(OS) 641/2007 and IA 3995/2007 dated
16.07.2008 (Del).
81. After considering the said cases, the learned single Judge
summarised the broad principles of law enunciated by the judgments
cited before him on the aspect of fair use and fair dealing as follows:-
(i) It is neither possible nor advisable to define the exact
contours of fair dealing;
(ii) It is a question of fact, degree, and at the end of the
day overall impression carried by the court;
(iii) In ascertaining whether extracts taken from
copyrighted work have been put to fair use, the extent and
the length of the extracts may be relevant. Long extracts
followed by short comments may in certain circumstances
be unfair, while short extracts followed by long comments
may be fair. In certain circumstances even small extracts,
which are taken, on regular basis may point to unfair use of
the copyrighted work.
(iv) The right to make fair use or to deal fairly with the
copyrighted work includes the right to criticize not only the
style, but also as the underlying doctrine or philosophy of
the copyrighted work. In this regard criticism could be both
"strong" and "unbalanced". Such criticism by itself will not
result in forfeiture of the defence of fair dealing. Malicious
and unjustified criticism may give to the aggrieved party a
cause for instituting an action for defamation but it would
certainly not confer a right founded in copyright.
(v) In ascertaining as to what would constitute reportage
of "current events" or would fall within the ambit of
"criticism" or "review", Courts ought to adopt a liberal
approach;
(vi) In discerning as to whether a person has made fair
use of copyrighted work, the standard employed ought to
be that of a "fair minded" and "honest person". In the case
of musical works the test would be that of a "lay hearer";
(vii) While examining the defence of fair dealing, the
length and the extent of the copyrighted work which is
made use of, as indicated in clause 3 above, is important,
however, it cannot be reduced to just a quantitative test
without having regard to the qualitative aspect. In other
words, enquiry ought to be made as to whether the
impugned extract forms an essential part of the work of
the person in whom inheres the copyright. This may be
particularly true in the case of musical works where a few
notes may make all the difference;
(viii) Even though copyrighted work may contain
confidential information, the courts would desist from
injuncting the use of such work if it is in public weal.
Though there is a difference between a breach of
confidence as against infringement of copyright, the Court
would not grant an injunction in favour of the person in
whom inheres the copyright if it is contrary to public policy,
that is, is:
(a) immoral;
(b) scandalous;
(c) contrary to family life ;
(d) injurious to public life, public health, safety or, is
inimical to administration of justice; and
(e) incites an action which endangers (c) and (d) above.
(ix) The principle of freedom of expression will protect
both information and ideas. Freedom of expression
includes the right to publish and receive information. Public
interest may in certain circumstances be so overwhelming
that courts would not refrain from injuncting use of even
"leaked information" or even the right to use the "very
words" in which the aggrieved person has copyright, as at
times, public interest may demand the use of the "very
words" to convey the message to public at large. While the
courts may desist from granting injunction based on the
principle of freedom of expression, this would, however,
not necessarily protect the infringer in an action instituted
on behalf of the person in whom the copyright vests for
damages and claim for an account of profits;
(x) Public interest and what the interests the public need
not be the same;
(xi) The motive of the user shall play an important role in
assessing as to whether injunction ought to be granted;
(xii) Commercial use of copyrighted work cannot
simplicitor make it unfair; and
(xiii) Lastly, "transformative use" may be deemed in
certain situations as fair use of copyrighted work."
82. The Court then proceeded to consider the Indian judgments
dealing with the aspect of infringements of copyright and the defence
of fair dealing. From the decision in M/s Blackwood and Sons Ltd
and Others Vs. A.N. Parusuraman and Others, AIR 1959 Mad
410, the Court deduced the following principles:-
(i) An infringement of copyrighted work would occur only
when there is a substantial re-production of the original
work. (see paragraph 70 at page 424).
(ii) What is protected is not original "thought" or
"information" but the "expression of thought" or
"information" in some concrete form. The defendant would
be liable for infringement if he has made unlawful use of
the form in which the thought or information is expressed.
(see paragraph 67, where an extract from Copinger on
Copyright has been cited with approval). Also see R. G.
Anand vs M/s Delux Films & Ors (1978) 4 SCC 118.
(iii) In ascertaining as to whether a substantial part of the
work has been reproduced it cannot be dependent solely
on the "bulk" or "length of the extract". "Not only quantity
but also the value" is required to be looked at. The
ultimate test is: whether there is an "appropriate" or more
appropriately "misappropriation" of the labour of another
in the matter of expression? An infringement of copyright
is in the nature of invasion of a right to property and
therefore the intention of the infringer is irrelevant,
provided there is an infringement. (see paragraph 67
where the observation of Lord Cottenham in Bramwell Vs.
Halcomb, 1836-3-My. And Crl 737-738 have been cited
with approval).
(iv) In considering whether the reproduction by the
infringer is substantial, the effect of defendant‟s
publication on the competition is only one of the factors
which is to be taken into account. If there is extraction of
"something of value" to an "appreciable degree" it is
immaterial whether the copying is or is not likely to
compete with the copyright work. The extent of copying by
itself would "negative the fairness". "The motive to
compete" would determine as to whether the infringer has
dealt with the original work fairly. If there is motive to
compete then the dealing would obviously be unfair.
(v) If "substantial" and "vital" part of the works are
reproduced the intention to appropriate on the part of the
infringer the labour of others for his own profit having been
made out, the court need not look to "proof of any
independent oblique motive".
83. The Court also considered the judgment in the Rupendra
Kashyap vs Jiwan Publishing House, 1996 (38) DRJ 81, which
related to the claim of copyright in the past years question papers for
classes 10th and 12th examination conducted by CBSE. One of the
issue which arose before the Court was whether the defence of fair
dealing could be raised by the defendants on the ground that they
were dealing with literary work for the purposes of "research" or
"private studies". The other question which came up for consideration
was that the denial of right to the contesting defendants to publish
examination paper would create a monopoly in favour of the plaintiff
and hence, would not be in public interest. In respect of the defence of
fair dealing, the Court applied the test of "commercial exploitation"
and observed that if a publisher commercially exploits the original
work, and in doing so, infringes the copyright, the defence of fair
dealing would not be available to such a publisher, even if the book
published by him is used, or meant to be used for research of private
study. As regards the issue of public interest, the Court held that the
said argument was not tenable as it could not be said that the
examination papers of the past years were not placed in public
domain. The plaintiff, being the exclusive licencee, had in the past
published the papers and put them in the public domain on payment of
royalty to CBSE. The Court in the passing made the following
observations:-
"Moreover, the law as to copyright in India is governed by
a statute which does not provide for defence in the name
of public interest. An infringement of copyright cannot be
permitted merely because it is claimed to be in public
interest to infringe a copyright."
84. The learned single Judge also dealt with Wiley Eastern Ltd &
Ors vs. Indian Institute of Management, 61(1996) DLT 281 (DB).
In this decision, the Division Bench had observed that the basic
purpose of Section 52 is to protect the freedom of expression under
Article 19(1) of the Constitution of India so that research, private study,
criticism or review or reporting of current events could be protected.
Section 52 is not intended by Parliament to negatively prescribe what
is an "infringement".
85. The learned single Judge added that the approach to be adopted
is really whether the impugned action results in an infringement. If it
does, then one would only look at the gateways provided in Section 52.
86. From Eastern Book Company & Ors. Vs D B Modak & Anr.,
(2008) 1 SCC 1, the learned single Judge culled out the following broad
principles enunciated in the judgment:-
"(i) Copyright protection is based on fair play. A person
is not permitted to make a profit out of the skill and labour
of the original author. (See paragraph 40).
(ii) Copyright law presents a balance between the
interests and rights of the author and that of the public in
protecting the public domain, or to claim the copyright
and protect it under the copyright statute. There is no
copyright in facts per se as facts are not created nor have
they originated with the author of any work which
embodies these facts. The issue of copyright is closely
connected to that of commercial viability, and commercial
consequences and implications.
(iii) To constitute original work under the Copyright Act,
the work must originate from the author and not be copied
from another work and it must be the product of an
author‟s exercise of sill and judgment. The exercise of
skill and judgment should not be "trivial", though creative
work by definition being original are protected by
copyright.
(iv) The court approved the dicta in the judgment of
Supreme Court of Canada in CCH Canadian Ltd. vs. Law
Society of Upper Canada 19 (2004) 1 SCR 339 (Canada)
in the following words:-
"The "sweat of the brow" approach to originality is too low
a standard which shifts the balance of copyright protection
too far in favour of the owner‟s right, and fails to allow
copyright to protect the public interest in maximizing the
production and dissemination of intellectual works. On the
other hand, the creativity standard of originality is too
high. A creative standard implies that something must be
novel or non-obvious - concepts more properly associated
with patent law than copyright law. By way of contrast, a
standard requiring the exercise of skill and judgment in the
production of a work avoids these difficulties and provides
a workable and appropriate standard for copyright
protection that is consistent with the policy of the
objectives of the Copyright Act. Thus, the Canadian
Supreme Court is of the view that to claim copyright in a
compilation, the author must produce a material with
exercise of his skill and judgment which may not be
creativity in the sense that it is not novel or non-obvious,
but at the same time it is not the product of merely labour
and capital."
87. As to what constitute "substantial taking", the learned single
Judge held that the law the law in India on this issue does not seem to
be any different from that in England or in USA. Therefore, while the
extent of extract, i.e., the "quantitative test" has its part to play in
determining infringement of a copyrighted work, the "quality" is
equally important. This is especially so, in the case of a musical work.
A single note made in certain cases may lead to an infringement, if it
forms an "essential" part of the copyrighted work. The test will have to
be that of a "lay hearer".
88. I find myself in complete agreement with the view of brother
Shakdhar, J. and I see no reason to disagree with the said view.
89. Learned counsel for India TV has placed reliance on various other
decisions, which it appears were not relied upon by the parties before
the court in the case of Super Cassettes Industries Vs. Hamar
Television Private Limited (supra). I proceed to deal with them at
this stage.
90. Campbell Vs. Acuff-Rose Music Inc., 29 USPQ 2d 1961, is an
American decision, wherein it was held that the mere fact that the use
of the earlier work is of commercial nature does not mean that such
use of the copyrighted work is presumptively unfair. Copying of the
original work, even of the "heart" of original work is not excessive, if
such copying is necessary. The respondent- Acuff-Rose Music filed the
suit against the petitioner, the members of a rap music group and their
record company on the ground that their song "Pretty Woman"
infringes Acuff-Rose‟s copyright in Roy Orbison‟s rock ballad. "Oh
Pretty Woman". The US Supreme Court, inter alia, held that the music
parody may be a fair use within the meaning of Section 107 of the US
Copyright Act. Section 107 provides that "the fair use of a copyrighted
work............for the purposes of such criticism or comment...........is not
an infringement". It was held that parody, like other comment and
criticism, may claim fair use. The inquiry in such cases is focused on
whether the new work merely supersedes the objects of the original
creation or whether, and to what extent, it is "transformative", altering
the original with new expression, meaning or message. The more
transformative the new work, the less the significance of other factors
like commercialization, that might weigh against a finding of fair use.
91. Time Warner Entertainment Co. Ltd. Vs. Channel 4
Television Corporation PLC, 28 IPR 459, is a decision rendered by
the Court of Appeal of United Kingdom. The plaintiffs were producers
and distributors of films. In 1971, they produced a well-known film „A
Clockwork Orange‟. The film was about an anti-social individual which
was prone of acts of mindless violence. Though it was an extremely
successful film, in 1974 it was withdrawn for fear that it might incite
violence. The defendant, a major a television corporation, wished to
produce a documentary on the reasons for the film‟s sociological
impact. The Director of the film, however, declined several requests to
participate in this venture. The defendant obtained a copy of the film
from a video shop in France and made a documentary. The plaintiff
obtained an injunction to restrain infringement of their copyright
pending trial. Twelve clips from the films totalling over 12 minutes,
which were used in the documentary, was admitted by the defendant
to constitute a substantial part of the 30-minute documentary.
However, they relied on the defence under Section 30(1) of the
Copyright, Patent & Designs Act, 1988, which permits fair dealing of a
copyright work for the purposes of criticism and review. The Court of
Appeal after examining the case held as follows:
"(i) Criticism or review of a work already in the public
domain which would otherwise constitute fair dealing will
rarely be rendered unfair because of the means by which
the work had been obtained. The way in which the
defendants had obtained the film did not therefore affect
the question of fair dealing.
(ii) It was not relevant to the question of fair dealing that
the documentary might have misrepresented the film‟s
content.
The program did not exceed the bounds of fair dealing by
reason of the length of the extracts used.
(iii) There was no serious issue that the defendants‟
intention was not to review or criticise the work. Criticism
of a work need not be of the work itself but may be of the
thought and philosophy behind it."
92. In this decision, the Court of Appeal took note of an earlier
decision in Belloff Vs. Pressdram Limited, (1973) 1 AER 241 at 263,
where it had been held: "fair dealing is a question of fact and of
impression". The Court observed "One has to consider whether the
allegedly infringing material may amount to an illegitimate exploitation
of the copyright holders‟ work".
93. British Broadcasting Corporation Vs. British Sky
Broadcasting Limited (formerly British Satellite Broadcasting
Limited), 21 IPR 503, is a decision of the Chancery Division. BBC
transmitted throughout the UK live broadcasts of the World Cup
football competition staged in Italy between June & July 1990. The BBC
had acquired copyright in its broadcasts. The defendant-BSB was
engaged in transmitting televisions programmes to the UK via satellite.
It had five specialized channels each dedicated to a specific audience.
Over the period of the World Cup finals, BSB included reports of the
results of the matches in its "Sports Desk" programme together with
film showing prominent features of the matches. This film was taken
from the BBC‟s live broadcasts. BSB accepted that the BBC had
copyright in its broadcasts and its use was, prima facie, an
infringement of copyright. However, BSB relied on the defence of fair
dealing for the purpose of reporting current events. The court
dismissed BBC‟s application for injunction and damages by holding as
follows:
(i) The quality and quantity of BBC copyright material
used in each programme was consistent with the nature of
a news report and no more than was reasonably requisite
for a television news report of the results of an important
match.
(Hubbard v Vosper [1972] 2 QB 84; Sillitoe v McGraw-Hill
Book Co (UK) Ltd [1983] FSR 545, applied.)
(ii) There is no justification for limiting the statutory
defence so as to apply only to reporting current events in a
general news programme.
(iii) The reporting of current events must be done
promptly. To have required BSB to postpone its use of the
material until after the material had been used in the
BBC‟s programmes would in practice have barred the use
of the material as an adjunct to the reporting of the World
Cup matches as current events.
(iv) If a programme is a genuine reporting of current
events, it is absurd to say that an endeavour to make the
programme more attractive is an oblique motive.
(Belloff v Pressdram Ltd [1973] 1 All ER 241; Johnstone v
Bernard Jones Publications Ld [1938] 1 Ch 599, applied.)
(v) The fact that the other broadcaster is a commercial
rival of the copyright owner does not, ipso facto, take the
case outside fair dealing. It is a factor, and perhaps in
some cases a very weighty factor, to be taken into
account.
(vi) The use of the BBC material, first, in a menu,
secondly, in the main report, and thirdly, in a replay, was
all for the purpose of reporting current events and was a
fair use of the material for that purpose.
94. Wade Williams Distribution Inc. Vs. American
Broadcasting Company Inc., 2005 U.S. Dist. LEXIS 5730, is a
decision of the United States District Court for the Southern District of
New York. The defendant-American Broadcasting Company (ABC) had
programme "Good Morning America" on 06.07.1997 which focused on
several news events with "outer space" themes. Amongst various
films released on the subject of Aliens, a couple of films wherein the
plaintiff claimed copyright were also featured which included a 4
second clip of the film "Monster". The defendant-ABC set up a defence
of fair use. The discussion in this judgement on the aspect of fair use
reads as follows:
"Fair Use
ABC‟s use of the three movies in the July 10, 1997 Good
Morning America segment was "fair use" within the
meaning of 17 U.S.C. .107. ... ... ... ... ... Section 107 of the
Copyright Act of 1976 is a codification of the judicially
created "fair use" doctrine as it previously existed in the
case law. See Folsom v. Marsh, 9 F.Cas.342, F. Cas
No.4901 (C.C.D. Mass. 1841) (No.4901). Under the
Copyright Act, "the fair use of a research, is not an
infringement of copyright." 17 U.S.C. .107 (2005). In
determining whether a particular use is a fair use, "[a]
court is to apply an `equitable rule of reason‟ analysis,
guided by four statutorily prescribed factors." Harper &
Row Publishers, Inc. v Nation Enter., 471 U.S. 539, 588, 85
L.Ed 2d 588, 105 S. Ct. 2218 (1985). The factors are
(1) The purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) The nature [*22] of the copyrighted work;
(3) The amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or
value of the copyrighted work.
17 U.S.C. .107. These "four factors are not necessarily the
exclusive determinants" of fair use, rather, a court may
also consider other factors in its analysis. Harper & Row.
471 U.S. at 588. "The [fair use inquiry] is not to be
simplified with bright-line rules, for the statute, like the
doctrine it recognizes, calls for case-by-case analysis."
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 127
L. Ed. 2d 500, 114 S. Ct. 1164 (1994). In each case, "all
[four factors] are to be explored, and the results weighed
together, in light of the purposes of copyright, "id., and
"the burden of proof is on the [accused infringer] to prove
that the use was fair." Hofheinz v. Discovery
Communications, Inc., No. 00 Civ. 3802, 2001 U.S. Dist.
LEXIS 14752, *7 (S.D.N.Y. Sept. 10, 2001) (citing Coleman
v. ESPN, Inc., 764 F. Supp. 290 (S.D.N.Y. 1991))."
95. The learned Judge also discussed the aspect of transformative
use in the following manner:
"i. Transformative Use
To be a fair use, the use of a copyrighted work should be
"productive" or "transformative," thereby furthering the
constitutional goal of promoting the progress of science
and the useful arts. Campbell, 510 U.S. at 579; Melville
B.Nimmer & David Nimmer, Nimmer on Copyright .13.05
[A][1][a] (2005). "Transformative use is not absolutely
necessary for a finding of fair use,"but" the more
transformative the new work, the less will be the
significance of other factors, like commercialism, that may
weigh against a finding of fair use." Campbell, 510 U.S. at
579. A use is transformative if it "adds something new,
with a further purpose or different character, altering the
first with new expression, meaning, or message." Id. (citing
Pierre N.Leval, Toward a Fair Use Standard, 103 Harv. L.
Rev. 1105 (1990).
The preamble of .107 informs the first factor by listing
"purposes such as criticism, comment," and several other
examples that "Congress most commonly found to be fair
uses." N4 Id. At 577, it follows that one indicator of
transformative use is that the use bears [*25] critically on
the "substance or style" of the copyrighted work itself. Id.
At 580. The Good Morning America segment at issue is a
transformative comment on, and a criticism of, how
filmmakers have portrayed aliens. Siegel used the films at
issue as examples to demonstrate and support his
commentary on twentieth century science fiction films. (J.
Siegel Affidavit. PP4, 7) Early in the segment, Siegel
presented his theme: "big or small, cute or icky, alien life
as portrayed in pop culture inevitably shares some
humanlike traits." (N. Siegel Deel. Exs. 3,4) He then
showed his interview with Professor Helfand, who pointed
out that in most films even "unhumanlike" alien creatures
still tended to have eyes, mouths, and other physical traits
in common with humans. (Id.) Professor Helfand clearly
criticized the science fiction genre when he attributed the
human traits of movie aliens to a lack of creativity." (Id.)
Professor Helfand‟s comments were played in close
proximity with the 3-second clip of The Brain from the
Planet Arous, where the alien is depicted as a giant
hovering brain with eyes. (N.Siegel Decl. Exs. 3, 9)."
96. The court agreed with the defendants submission that the use of
the plaintiff‟s copyrighted works amounted to fair use for the purpose
of criticism and review on the theme of outer space and aliens because
it commented on and criticized the themes using short clips from them
in a transformative manner which was not likely to harm the future
marketability of the films.
97. Indian Performing Right Society Ltd. Vs. Eastern Indian
Motion Pictures Association and Others, (1977) 2 SCC 820, is
relied upon by Ms. Pratibha Singh to submit that the singer should be
recognized by the copyright law as possessing some rights in his/her
rendition. In paragraph 24 of this decision, V.R. Krishna Iyer J, observed
as follows:
"A somewhat un-Indian feature we noticed in the Indian
Copyright Act falls to be mentioned. Of course, when our
law is intellectual borrowing from British reports as,
admittedly it is, such exoticism is possible. „Musical work‟,
as defined in Section 2(p), reads:
(p) musical work means any combination of melody
and harmony or either of them printed, reduced to
writing or otherwise graphically produced or
reproduced. Therefore, copyrighted music is not the
soulful tune, the superb singing, the glorious voice or
the wonderful rendering. It is the melody or
harmony to listen and be enthralled or enchanted by
the nada brahma, the sweet concord of sounds, the
raga, the bhava, the laya and the sublime or exciting
singing. Printed music is not the glamour or glory of
it, by and large, although the content of the poem or
the lyric or the song does have appeal. Strangely
enough, „author‟, as defined in Section 2(d), in
relation to a musical work, is only the composer and
Section 16 confines „copyright‟ to those works which
are recognised by the Act. This means has none.
This disentitlement of the musician or group of
musical artists to copyright is un-Indian, because the
major attraction which lends monetary value to a
musical performance is not the music maker, so
much as the musician. Perhaps, both deserve to be
recognized by the copyright law. I make this
observation only because art, in one sense, depends
on the ethos and the aesthetic best of a people, and
while universal protection of intellectual and
aesthetic property of creators of „works‟ is an
international obligation, each country in its law must
protect such rights wherever originality is
contributed. So viewed, apart from the music
composer, the singer must be conferred a right. Of
course, law-making is the province of Parliament, but
the Court must communicate to the law-maker such
infirmities as exist in the law extant."
98. Prasar Bharti Vs. Sahara TV Network Pvt. Ltd. & Ors.,
2006 (32) PTC 235 (Del.), is a decision rendered by the learned Single
Judge of this court, wherein it had been held that news channels
cannot be treated at par with commercial channels, and they must act
in a larger interest of the public in ensuring that cricket news reaches
all parts of the country or even overseas. BCCI had granted exclusive
telecast rights to Prasar Bharti in relation to the India-South Africa
cricket series.
99. From the said order it appears that it was made as an interim
arrangement without deciding upon the rights of either party and
without prejudice to rights and contentions of the parties as the parties
had not seriously opposed the passing of interim directions. The court
had directed that the news channels would be regulated in terms of
the same clause as stated in the rules of the Prasar Bharti on record
except to the extent that the maximum cap limit of 2 minutes shall
stand extended to 7 minutes in 24 hours, and the use of this time shall
only be for giving cricket news without any commercial programme,
advertisements before, during and after the cricket news. However,
the defendant was at liberty to show any news or important events
during that period as well. The court specifically observed that the
directions had been issued keeping in view the peculiar facts of the
case as an interim measure and they are not to be treated as a
precedence.
100. The aforesaid decisions relied upon by the learned counsel for
the defendant-India TV in no way contradicts any of the conclusions
reached by this court in Super Cassette Industries Limited Vs.
Hamar Television Private Channel (supra). It remains to be seen
whether, on the facts found in these cases, the defendant is in a
position to derive any benefit from the aforesaid decisions.
101. Chancellor Masters & Scholars of the University of Oxford
v. Narendra Publishing House and Ors., 2008 (38) PTC 385 (Del)
has been relied upon by the defendant to invoke the doctrine of
"transformative work". According to the defendant, India TV, by use of
the plaintiffs copyright works in its programmes, the defendant has
transformed the plaintiffs works substantially and the user of the said
works constitutes fair use.
102. In this case, the Court took note of the judgment of the Supreme
Court in R.G. Anand v. M/s. Deluxe Films, 1978 (4) SCC 118,
wherein it had been observed:
"Where the theme is the same but is presented and
treated differently so that the subsequent work becomes a
completely new work, no question of violation of copyright
arises."
103. After considering a few other decisions, the Court in paras 33
and 34 held as follows:
"33. The doctrine of fair use then, legitimizes the
reproduction of a copyrightable work. Coupled with a
limited copyright term, it guarantees not only a public pool
of ideas and information, but also a vibrant public domain
in expression, from which an individual can draw as well as
replenish. Fair use provisions, then must be interpreted so
as to strike a balance between the exclusive rights granted
to the copyright holder, and the often competing interest
of enriching the public domain. Section 52 therefore cannot
be interpreted to stifle creativity, and the same time must
discourage blatant plagiarism. It, therefore, must receive a
liberal construction in harmony with the objectives of
copyright law. Section 52 of the Act only details the broad
heads, use under which would not amount to infringement.
Resort, must, therefore be made to the principles
enunciated by the courts to identify fair use.
34. One crucial test, of the four-factor test, as developed
by the American courts, is the transformative character of
the use. The Courts should in cases like the present ask
whether the purpose served by the subsequent (or
infringing) work is substantially different (or is the same)
from the purpose served by the prior work. The subsequent
work must be different in character; it must not be a mere
substitute, in that, it not sufficient that only superficial
changes are made, the basic character remaining the
same, to be called transformative. This determination,
according to the Court is closely knit with the other three
factors, and therefore, central to the determination of fair
use. If the work is transformative, then it might not matter
that the copying is whole or substantial. Again, if it is
transformative, it may not act as a market substitute and
consequently, will not affect the market share of the prior
work".
104. Learned counsel for the plaintiff Super Cassettes and Yashraj
Films have relied upon the decisions in Roy Export Company
Establishment of Vaduz, Liechtenstein, Black Inc. v. Columbia
Broadcasting System Inc., 503 F. Supp. 1137; and, Bridgeport
Music, Inc. Westbound Records, Inc. v. Dimension Films,
Miramax Film Corp., decided by United States Court of Appeals, for
the Sixth Circuit.
105. In Roy Export Co. (supra), the defendant produced a 13 minute
film consisting of highlights from Charlie Chaplin film. According to the
plaintiff, there were unauthorized scenes added in the film. The
plaintiff, who held the copyright in the films of Charlie Chaplin, sued
the defendant. One of the defences taken by the defendant was that
its use constitutes news reporting of matter of intense public interest.
The Court held that the defendant possessed an unfettered right to use
any factual information about Charlie Chaplin. However, the defendant
had, instead, used Chaplin‟s artistic works themselves. It observed
that the fair use doctrine is not a license for corporate theft
empowering a court to ignore a copyright, whenever it determines the
underlying work contains material of possible public importance.
106. The defendants next defence founded upon the first amendment
to American Constitution was also rejected by the Court by holding that
the same was not applicable with reference to the film clips. The film
clips were used by the defendant to illustrate Chaplin‟s artistic genius,
not to communicate anything about the events depicted in the films,
which were fictitious.
107. In Bridgeport Music (supra), the Court held that even when a
small part of a sound recording is sampled, the part taken is something
of value. No further proof of that is necessary than the fact that the
producer of the record or the artist on the record intentionally sampled
the sound recording, because it would - (1) save costs, or (2) add
something to the new recording, or (3) both.
108. I have already narrated the respective cases of the parties in the
opening part of this judgment. The plaintiff has also shown to the
Court the recording of the excerpts of the programme „India Beats‟,
stated to have been telecasted on 27.05.2006. The popular singer
Richa Sharma featured in this programme. The anchor poses a few
questions to the singer which are personal in nature and relating to her
family. She is asked about her experiences of past performances. The
anchor talks to the audience and states that „Mahi ve‟ is a very popular
song of the singer. Thereafter the singer sings the song „Mahi ve‟ from
the film „KAANTE‟. During the said performance, there are excerpts
from the cinematograph film „KAANTE‟ itself which are played. At the
end of the song, the audience sitting in the studio applaudes. As
contended by the plaintiff, she sings the said song for over three
minutes. There is a commercial break thereafter. When the
programme resumes, the artist is asked about her experience of
working with various music directors. The anchor then states that the
singer has given a very good performance while singing the song
„Tauba Tauba‟ . She is asked if she would like to sing the song.
Thereafter the signer sings the said song. When the said song is
being sung, excerpts from the cinematograph film are also played on
the screen. There is another commercial break after the said song.
When the programme resumes, the anchor then states that the singer
is singing beautiful songs and also asks which song she would like to
perform next. She states that she would like to sing a Thumri from the
film „ZUBEIDAA‟. The singer then perfoms the song „Saiya Chodo More
Baiya‟ from the film „ZUBEIDAA‟. She is thereafter asked questions
about her family life. She is then asked what kind of performances she
likes to give. She is then asked which song she would like to sing now.
The performer then performs the song „Zindagi Me‟ from the film
„MUSAFIR‟, approximately for about four minutes. She also implores
the audience to sing with her the said song. At the end of the song,
there is applause from the audience. This is again followed by a
commercial break. After the break, the anchor asks the performer to
sing the song from another cinematograph film „SOCH‟ which she
sings. In all these songs she is accompanied by an orchestra present
in the studio. She is asked about her work in Tamil songs. After she
sings the said song for a while, she is asked what she would like to
next sing. She states that she would like to sing the song from the
latest film, „PYARE MOHAN‟. Thereafter she performs the song. This is
again followed by a commercial break. After the commercial break,
when the programme resumes, it begins with the performance of
another song. She is then asked what sort of music she has grown up
with. She is then asked about the projects on which she is working on.
The anchor then asks her, before the close of the show, which song she
would like to sing. The singer then performs another song.
109. Even if one were to assume that fair use in respect of the
cinematograph films and sound recordings are permissible under
Sections 52(1)(a) and 52(1)(b) of the Copyright Act, the usage resorted
to by the defendant India TV of the plaintiffs copyright works, prima-
facie, cannot be said to be a fair use, either for the purpose of criticism
or review of the copyright works of the plaintiffs, or of any other work,
or a fair dealing with the copyright works of the plaintiffs, namely
cinematograph films and sound recordings for the purpose of reporting
current events. There is absolutely no review or criticism of the sound
recording or the cinematograph films, or of the literary, or musical
works performed by artists during the course of the said programme.
It is, out and out, an entertainment programme with some information
about the performer sprinkled here and there. There is hardly any
intellectual input, in the making of the programme, contributed either
by the anchor or by the defendant, India TV. It is, plain and simple, a
commercial exploitation of the copyright works of, inter alia, the
plaintiffs Super Cassettes and Yashraj Films by the defendant. The
"taking" is substantial, not only in quantity but even in quality. Even if
one were to apply the test of transformative use and examine whether
the work of the defendant is transformative; and whether the use of
the plaintiffs copyright works is transformative, it is clear that the
defendant, India TV does not pass the said test. What India TV has
done is merely lifted the copyright works of the plaintiff, as aforesaid,
without any change. So much so, there are no superficial changes
made by the defendant and the basic character of the works of the
plaintiff which have been lifted and used by the defendant remains the
same. The identity of the plaintiffs copyright work has not undergone
any change or transformation. The decision in Chancellor Masters
(supra), therefore, does not come to the rescue of the defendant. The
defendants have failed to meet the criteria culled out by this Court in
Super Cassettes Industries Vs. Hamar Television Private
Limited (supra) to claim that their use of the copyright works of the
plaintiffs tantamounts to "fair use" as permitted under the Act.
110. I find the averments made by the plaintiffs in their respective
plaints to be substantially corroborated by the video recordings
produced by the plaintiffs. The averments of the plaintiff Super
Cassettes set out in paras 10 and 11 appear to be fairly accurate
narration of the way in which the defendant India TV has used and
exploited the said plaintiffs copyright works. The admitted position is
that the song „Kajrare‟ from the cinematograph film „Bunty Aur Babli‟
was played for the promotion of the defendants programme „Sab
Golmal Hai‟. It is also not disputed and is rather the admitted position
that excerpts from the film „Salaam Namaste‟ were shown in the „India
Beats‟ programme. The taking of the plaintiffs copyright works by the
defendants is, prima-facie, substantial and the purpose of such copying
of the plaintiffs copyright works, in no way, appear to be for the
purpose of criticism or review of the said works, or of any other works.
The usage of the said copyright works of the plaintiff also cannot be
said to be for the purpose of reporting current events, much less the
said usage can be described as a fair dealing of the plaintiffs‟ copyright
works.
111. As I have already noticed hereinabove the main plank of the
defendants rested not on a denial of the factual assertions of the two
plaintiffs made in their respective plaints, but on the interpretation of
Sections 52(1)(a) and 52(1)(b) of the Copyright Act.
112. For the reasons discussed hereinabove, I do not agree with the
interpretation sought to be advanced by the defendant in relation to
Sections 52(1)(a) and 52(1)(b) of the Copyright Act. Consequently, the
plaintiffs have clearly made out a, prima-facie, case in their favour for
grant of interim protection. The balance of convenience is also in
favour of the plaintiffs inasmuch, as, they are entitled to protection of
their copyright and the defendants can be permitted to infringe the
same. The plaintiffs will suffer irreparable loss and injury if the
defendant, India TV continues to infringe the plaintiffs copyrights in
their works, namely cinematograph films and sound recordings
inasmuch, as, the plaintiffs obviously would have invested monies for
producing the said copyright works for the purpose of commercial
exploitation. The unlicensed user of the said copyright works of the
plaintiffs by the defendants-India TV would not only deprive the
plaintiffs of the revenues that they are entitled to earn, but
unathorised exploitation of the works would encourage others to follow
suit and defy the rights of the plaintiffs.
113. For all the aforesaid reasons, I allow the interim applications,
namely I.A. No. 13741/2006 in CS(OS) 2282/2006; I.A. No. 13743/2006
in CS(OS) 2283/2006; and dismiss I.A. No. 9900/2006 in CS(OS)
1706/2006. The interim order dated 05.09.2006 passed in this
application stands vacated.
114. The defendant-India TV is restrained from either engaging in
themselves, or from authorizing, the public performance /
communication to the public, reproduction, recording, distributing,
broadcasting or otherwise publishing or in any other way exploiting
any cinematograph films or sound recordings or other work or part
thereof that is owned by the plaintiff-Super Cassettes Industries
Limited.
115. The defendant India-TV is also restrained from, distributing,
broadcasting or otherwise publishing or in any other way exploiting the
cinematograph films „Bunty Aur Babli‟ and „Salaam Namaste‟ or any
sound recordings or part thereof incorporated in the said
cinematograph films, or doing any other act that would lead to
infringement of copyright in the said cinematograph films.
116. The defendant India-TV is also restrained from distributing,
broadcasting or otherwise publishing or in any other way exploiting
any cinematograph film, sound recordings or part thereof that is owned
by the plaintiff-Yash Raj Films Private Limited.
117. Each of the plaintiffs, i.e. Super Cassettes Industries Limited &
Yashraj Films Private Limited are entitled to Costs quantified at Rupees
Two Lakhs each. The Costs be paid within one month.
(VIPIN SANGHI)
JUDGE
NOVEMBER 11, 2011
as/'BSR'/sr
