Delhi High Court
Sanjay Kuamr Gupta & Anr vs Sony Pictures Networks India P Ltd ... on 10 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 627/2018
% Reserved on : 6th August, 2018
Pronounced on : 10th August,2018
SANJAY KUAMR GUPTA & ANR. ..... Appellants
Through: Mr. Chander Lall, Sr. Adv. with
Mr. Sachin Gupta and Ms.
Surabhi Grover, Advocates.
versus
SONY PICTURES NETWORKS INDIA P LTD & ORS.
..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J
CM No. 31250/2018(Exemption)
Exemption allowed subject to just exceptions.
CM stands disposed of.
RFA No.627/2018 & CM No. 31249/2018 (stay)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908(CPC) is filed by the plaintiffs in the suit
impugning the Judgment of the Trial Court dated 13.7.2018 by which
the trial court has dismissed the suit of the appellants/plaintiffs
alleging violation by the respondents/defendants of
appellant's/plaintiff's copyright and confidentiality in the concept
'Jeeto Unlimited'. „Jeeto Unlimited‟ is a play along concept of a live
show on TV whereby the home viewers get to simultaneously play
along with the contestants on the live show i.e the home viewers are
given a chance to answer the same questions on the show by use of
phone and are rewarded for a successful answer to a question/quiz.
2(i) The facts of the case are that the appellants/plaintiffs
pleaded that they got registered a copyright vide Registration No.L-
45361/2013 dated 4.01.2013 with respect to their concept 'Jeeto
Unlimited'. The concept of the appellants/plaintiffs has been
elaborated by them in para 8 of the plaint the relevant portion of para 8
is reproduced as under:-
"The essential components of the concept Jeeto Unlimited are as under:-
a. The home audience/viewers get to play along with the contestant
simultaneously;
b. The home viewers get to answer the same question, which is posed
to the contestant;
c. The home viewers play along with the contestants using their
phone;
d. The home viewers need to watch the TV Show to play the game;
e. The home viewers are awarded depending upon the value of the
question when answered correctly."
(ii) The appellants/plaintiffs pleaded that they presented this
concept to the respondent no.1/defendant no.1 i.e Sony Pictures
Network India Pvt. Ltd which runs a popular game show "Kaun
Banega Carorepati" (KBC). Respondent no.4/defendant no.4 is the
production company which produces the KBC show. Respondent
no.5/defendant no.5 is Reliance Jio Infocomm Ltd. which provides the
telecom services in the KBC play along segment with the segment of
the live KBC show in the studio. Appellants/Plaintiffs pleaded that
respondent no.1/defendant no.1 has copied the concept which was
presented by the appellants/plaintiffs in the year of 2010-2011 and
hence violated the copyright of the appellants/plaintiffs.
Appellants/plaintiffs have also pleaded in para 13 of the plaint that the
appellants/plaintiffs were forced to send a consent letter to release the
respondent no.1/defendant no.1/ Media Houses from any liability in
case they broadcast a content which is similar to the concept note
being presented by the appellants/plaintiffs. This is stated in para 13
of the plaint and which reads as under:-
"13. Sometime in December 2011, the Plaintiffs spoke to Miss Geetika
Johri, an employee with Turner Broadcasting System that owned Imagine
TV channel and discussed their concept of Jeeto Unlimited. Miss Johri
showed keen interest and requested the Plaintiff No. 1 for the concept
note. The Plaintiff No. 1 vide his email dated Dec 22, 2011 to Miss Johri
forwarded the concept note of "Jeeto Unlimited". Miss Johri introduced
the Plaintiff No. 1 to Miss Candida Soares, who after exchanging few
emails and telephonic conversations arranged a meeting with Miss
Tasneem Thingna of Turner Broadcasting System at Mumbai. The
Plaintiffs were asked to sign a consent letter. A consent letter in the
television industry allegedly releases the media houses from any liability
in case they broadcast content that is similar to the concept note that is
being presented before them. The Plaintiffs met Miss Thingna at the
office of Turner Broadcasting System in Mumbai on February 23, 2012.
The Plaintiffs present their "Jeeto Unlimited" concept to her. However,
nothing materialized in the said meeting."
(iii) The appellants/plaintiffs have further pleaded that the
respondents/defendants have violated the copyright of the
appellants/plaintiffs in their concept 'Jeeto Unlimited' and how there is
similarity between the concept of 'Jeeto Unlimited' of the
appellants/plaintiffs and KBC show of the respondents/defendants is
as is stated in para 19 of the plaint, and the relevant portion of para 19
reads as under:-
Jeeto Unlimited Jio KBC Play Along-Darshak
Banenga Khilaadi
Time of Game will be played Game will be played
Participation simultaneously with the simultaneously with the
contestant and the home contestant and the home
audience audience.
Questions Home audience answers the Home audience answers the
same question that has been same question that has been
asked to the contestant asked to the contestant.
Mode of Home viewer can participate by Home Viewer can participate
participation watching the television for by watching the television for
questions and giving the answer questions and giving the
through SMS/email answer through JioChat
Basis of Reward depends on the amount Reward depends on the
reward of money for which the question amount of money for which
is being played the question is being played
Selection of Home Viewer will be selected Home Viewer will be selected
winner through digital mode through digital mode
programming by the channel‟s programming by the channel‟s
technical team technical team.
(iv) Appellants/plaintiffs further plead breach of
confidentiality inasmuch as the concept of 'Jeeto Unlimited' was in
confidentiality given by the appellants/plaintiffs to the
respondents/defendants, and the respondents/defendants were not to
use the said confidential information of the concept 'Jeeto Unlimited',
but the respondents/defendants have done so.
3. The respondents/defendants contested the suit and prayed
for dismissal of the suit. It was pleaded by the respondents/defendants
that the appellants/plaintiffs had no copyright in the concept which
they are/were claiming, and in fact the show of the
respondents/defendants is substantially different from the
show/concept 'Jeeto Unlimited' of the appellants/plaintiffs whereby
there is no violation of alleged copyright of appellants/plaintiffs.
4. After pleadings were complete, trial court framed the
issues and parties led evidence. These aspects are recorded in paras
17 to 21 of the impugned judgment, and which paras read as under:-
"17. From the pleadings of the parties, following issues were
framed vide order dated 12.12.2017:-
1. Whether the present court lacks the territorial jurisdiction
to entertain the present suit? OPD
2. Whether the suit is liable to be dismissed for non- joinder / mis-
joinder of the necessary parties? OPD
3. Whether the suit fails for improper verification of pleadings as
required in terms of Order VI Rule 15 CPC and for non filing of
affidavit by plaintiff no.2?OPD
4 Whether the copyrights claimed by the plaintiff in the concept of
"Jeeto Unlimited" is an original work for the purpose of the
Copyright Act, 1957? OPP
5 Whether the plaintiffs entitled to a decree for
infringement of his copyright work in terms of prayer clause (a)
of the plaint? OPP.
6 Whether the plaintiff prove their case of breach of confidence in
terms of the prayer clause (b) of the suit? OPP
7 Whether the plaintiff is entitled to rendition of accounts /
profits in terms of prayer clause (c) of the suit? If so, to what effect?
OPP
8 Relief? Any other.
Evidence:-
18. Thereafter, the matter was fixed for plaintiff evidence.
On 09.01.2018 plaintiff no. 1 himself examined as PW-1 and tendered his
evidence and proved documents exhibited as Ex. PW-1/1 to Ex. PW- 1/44.
Plaintiff closed his evidence and matter was fixed for DE.
19. In the defence evidence, Sh. Ajay Bhalwankar, Chief Creative
Director, Central Content Organization, Channel Sony Entertainment
Television, is examined as DW-1 and tendered his evidence and proved
document exhibited as Ex. DW-1/1.
20. Sh. Prathamesh Ramesh Mestry, posted as Deputy General Manager-
Legal, at defendant no. 4 company is examined as DW-2 and tendered his
evidence and proved documents already on record filed with WS of
defendant no. 4 as annexure A & Annexure B as exhibited as Ex. DW- 4/1 to
Ex. DW4/3.
21. Sh. Amogh Dusad, posted as Senior Vice President and
Head- Insights and Programming Strategy, Sony Entertainment
Television Channel at defendant no. 1 is examined as DW-3 and
tendered his evidence and proved document, i.e. Authority letter, exhibited
along with evidence by way of affidavit of DW-1 as DW-1/1. Thereafter, on
submissions of Ld. Counsel for defendant, DE stands closed."
5 (i) The main issues are issue nos. 4 and 5 and the trial court
has held these issues in favour of the respondents/defendants and
consequently dismissed the suit. Trial court has held that as per the
judgment of the Supreme Court in the case of R.G.Anand Vs. M/s
Delux Films & Others. (1978) 4 SCC 118 there can be no copyright
in an idea, principle, subject-matter, themes, plots etc. This Court
additionally notes that in law what is copyrightable is not an idea,
principle, subject-matter, theme, plot etc but how such aspects are
brought into a form of literary work or dramatic work or artistic work
or musical work or cinematographic film or sound recording or actual
live shows/performers rights or broadcasting rights (Chapter VIII
Sections 37 to 39A) and only which are then copyrightable issues as
per the Copyright Act, 1957. Trial court has referred to the fact that
PW-1/plaintiff no.1 himself in his cross-examination admitted that the
concept of audience/viewer engagement has been earlier used in
various television programmes though PW-1 contended that however
such earlier television programmes were not similar to the concept
'Jeeto Unlimited' of the appellants/plaintiffs. Trial court has held that
it would be a fallacy to contend that respondents/defendants had
copied the substantial and fundamental aspects of copyright works of
the appellants/plaintiffs. Trial court has referred to the points of
distinction given by the respondent no.1/defendant no.1 in his written
statement to hold that both the issues are not completely identical.
This relevant chart of para 18 of the written statement reads as under:-
Sr. No. Answering Defendant's show, KBC Plaintiffs' concept
Jeeto Unlimited
1. A question is made public on Entries are called in
Television and serves as an audition for for participation and
aspiring contestants. The viewers can are shortlisted to ten
answer the question. A pool of individuals through
individuals giving the correct answer is lottery. The name of
selected. During the broadcast of the the contestants is then
episode, the chosen pool of individuals captured in ten white
are given a question whoever answers balls which are kept in
first, through a feature called „Fastest a big jar and shuffled
Finger First‟, is selected as a contestant. with air pressure, and
one ball is selected by
electronic system by
pushing the jar. The
name inside the ball is
the chosen contestant.
2. There is no overlap of play between the The home viewers are
contestant playing the show, and the invited to answer the
home viewers playing along on the Jio questions posed to the
Chat App. This is especially apparent contestant. The five
since even if the contestant‟s game on quickest SMS
the show ends, the home viewer‟s game responses and five e-
continues and does not end. mail responses are
chosen, in which three
SMS and three email
responses are correct,
and two SMS and
email responses are
incorrect.
If the contestant is
unable to answer a
question, he can avail
of a lifeline and choose
to unveil any one of
the selected 5 SMS‟ or
email responses.
3. The contestant playing with the host is The contestant and the
a pre-recorded event. The home home viewer are
viewers get to watch the pre-recorded playing
episode and play along on their Jio simultaneously.
Chat App
4. The games played by the contestant and If the contestant
the home viewers are separate, and chooses the correct
their rewards are different as well response from the
responses sent in by
The contestant is rewarded with home viewers and
monetary award for every right answer. displayed to him, the
contestant is awarded
The home viewer, in contrast, is given
by increasing the
„points‟. When these points hit a certain
monetary amounts s/he
benchmark, they are converted into
has won. The home
rewards such as Trips to a foreign
viewer whose response
nation, etc.
was chosen is
There is no splitting or overlap of rewarded by splitting
awards to the contestant and the home the increase of
viewer. monetary amount
between the contestant
and the home viewer.
5. The contestant is provided only one The contestant is
opportunity to answer the question. If negatively marked for
he answers incorrectly, the game ends the first wrong answer,
for him and the game ends on
the second wrong
answer. The
contestant is given in
total two opportunities
to answer incorrectly
before the game ends
for him.
(ii) Trial court has further held that once the issue involves
home audience engagement there is bound to be some similarities in
the components/segments of the concept, and the concept of a quiz
show is a concept which is otherwise well known. This is observed by
the trial court in paras 48 to 50 of the impugned judgment and which
paras read as under:
"48. In the present case, since both the concept involve
home audience engagement, similarities as to mode of communication is
bound to happen via fixed telephone, mobile smartphones, internet or
presently in vogue computer designed mobile software commonly known
as 'app'. Since the two concept notes relates to TV Quiz,
similarities are bound to occur in the questions asked to the home audience,
which may or may not be same as that asked to the
contestant. The rewards for correct answer will also be limited in terms of
monetary benefits or something which could be expressed in monetary
terms. The two game shows however as averred by the defendant no.1
differs in ways as stated in para 18 of the written statement.
49. The KBC show selects home audience on the basis of 'Fastest Finger
Test', whereas the plaintiff's concept selects individuals on lottery
system. The former then allows an individual game to the home
audience, the game of the latter on the other hand is dependent
on the contestant on the TV. The KBC show keeps the contestant's and
home audience's game separate which can be run with a pre-recorded
event, whereas the 'Jeeto Unlimited' provides for a live show whereby the
home audience plays simultaneously with the contestant. The rewards
system is also remarkably different, wherein the KBC Show the
home audience earns points for each answer and they earn points
throughout the season which can later be converted into awards, the
plaintiff's rewards is only money value which is shared by the home
contestant from the prize money of the contestant on the show. The
prize money in for the plaintiff concept's home audience is
dependent on the help sought by the contestant of the show, on the
other hand, the KBC show allows the home audience to earn their own
points irrespective of the game of the contestant on the show.
50. From the above discussion, this court is of the considered view that
the 'Jio KBC Play Along - Darshak Banenge Khilaadi' has
fundamental and substantial difference from the 'Jeeto Unlimited'. The
former cannot be termed as copyright infringement of the latter. Therefore
the question of use of the plaintiff's work as a "spring board"
does not arise at all." (underlining added)
6(i) I completely agree with the discussion, reasoning and
conclusions of the trial court inasmuch as a concept or a view or an
idea is not and cannot in itself be a subject matter of a copyright.
Under the Copyright Act it is only a literary work or dramatic work or
artistic work or musical work or sound recording or cinematographic
film or live shows/performers‟ rights which are the subject matter of a
copyright. The expression „work‟ with respect to which copyright is
granted is defined in Section 2(y) of the Copyright Act and this
Section reads as under:-
"Section 2(y) "work" means any of the following works, namely:-
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording"
(ii) Besides the above works, the other works in which
copyright can exist are live shows or performers rights and
broadcasting rights as provided in Chapter VIII Sections 37 to 39A of
the Copyright Act. Except such copyrights, statutorily no copyright
can exist. Section 16 of the Copyright Act makes this very clear that
there cannot be copyright except as provided in this Act, and this
Section 16 reads as under:-
"16. No copyright except as provided in this Act.-- No person
shall be entitled to copyright or any similar right in any work,
whether published or unpublished, otherwise than under and in
accordance with the provisions of this Act or of any other law for
the time being in force, but nothing in this section shall be
construed as abrogating any right or jurisdiction to restrain a
breach of trust or confidence." (underlining added)
7. Not only what is a copyright work is provided in
Copyright Act, but what is the maximum entitlement of a copyright
holder to exploit the copyright work and in which manner is also
provided in Copyright Act,1957, and this is stated in Section 14 of the
Copyright Act which reads as under:-
"Section 14. Meaning of Copyright.-- For the purposes of this Act,
"copyright" means the exclusive right subject to the provisions of this Act,
to do or authorise the doing of any of the following acts in respect of a
work or any substantial part thereof, namely:--
(a) in the case of a literary, dramatic or musical work, not being a
computer programme,--
(i) to reproduce the work in any material form including the storing
of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies
already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect
of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work,
any of the acts specified in relation to the work in sub-clauses (i) to
(vi);
(b) in the case of a computer programme,--
(i) to do any of the acts specified in clause (a);
[(ii) to sell or give on commercial rental or offer for sale or for
commercial rental any copy of the computer programme: Provided
that such commercial rental does not apply in respect of computer
programmes where the programme itself is not the essential object
of the rental].
(c) in the case of an artistic work,--
2 (i) to reproduce the work in any material form including--
(A) the storing of it in any medium by electronic or other
means; or
(B) depiction in three-dimensions of a two-dimensional
work; or
(C) depiction in two-dimensions of a three-dimensional
work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies
already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to adaptation of the work any of the acts
specified in relation to the work in sub-clauses (i) to (iv);
(d) in the case of a cinematograph film,--
(i) to make a copy of the film, including--
(A) a photograph of any image forming part thereof; or
(B) storing of it in any medium by electronic or other
means;
(ii) to sell or give on commercial rental or offer for sale or for such
rental, any copy of the film;
(iii) to communicate the film to the public;
(e) in the case of a sound recording,--
(i) to make any other sound recording embodying it 1 including storing
of it in any medium by electronic or other means;
(ii) to sell or give on commercial rental or offer for sale or for such
rental, any copy of the sound recording;
(iii) to communicate the sound recording to the public."
Explanation--For the purposes of this section, a copy which has been sold
once shall be deemed to be a copy already in circulation." (underlining added)
8. Therefore it is seen that what is subject matter of
copyright, what is the effect of having a copyright and the right and
extent and the manner to exploit the copyright, are all issues which are
exhaustively provided in the Copyright Act. Concept is not a
copyright work as provided in the definition of work in Section 2(y) or
Sections 37 to 39A of the Copyright Act. A concept obviously cannot
be a subject matter of copyright because a concept has to be brought
into the form of a literary work or dramatic work or musical work or
artistic work or cinematographic work or sound recording or a
performance/performer‟s right or live show and only where after there
will exist a copyright in the work.
9. When we look at the concept of 'Jeeto Unlimited', with its
sub-parts as stated in para 8 of the plaint, it is seen that the
parts/components of the concept 'Jeeto Unlimited' would naturally be
parts of every show where a home audience/viewers get to play along
with the contestant in the studio. The portion of para 8 of the plaint
which has been reproduced above in this judgment cannot be said to
be a literary work or dramatic work or artistic work or musical work
or cinematographic work or sound recording or live show/performance
right as per the Copyright Act and consequently appellants/plaintiffs
have rightly been denied the entitlement/claim of copyright in its
concept of 'Jeeto Unlimited' by the trial court, and the relevant paras of
the trial court in this regard have already been reproduced above.
9. This Court would like to reiterate the fact that even for
the sake of arguments if existence of a concept is to be taken as a
copyright work under the Copyright Act, and which cannot be unless
the concept is transformed into literary work or dramatic work or
artistic work or musical work etc, the concept floated by the
appellants/plaintiffs of a play along audience sitting at home was a
concept already in public domain and as admitted by plaintiff
no.1/PW-1 in his cross-examination and as noted in para 39 of the
impugned judgment. Once the concept propounded by the
appellants/plaintiffs, assuming it can be granted a copyright although
it cannot be in law, yet since the concept was otherwise in public
domain, hence the appellants/plaintiffs could not have succeeded in
the suit claiming that the concept 'Jeeto Unlimited' is an original work
which is essentially a well known play along concept of audience
sitting at home. A copyright is claimed for an original work or original
creation in view of Section 13(1) of the Copyright Act. It is noted that
in the plaint there is no averment that appellants/plaintiffs are first in
the world who have innovated such a concept of play along audience
sitting at home, and also as conceded before this Court that from a
reading of the plaint filed by the appellants/plaintiffs no such averment
exists in the plaint.
10. I cannot agree with the arguments urged on behalf of the
appellants/plaintiffs by placing reliance upon a judgment of a learned
Single Judge of this Court in the case of Mr. Anil Gupta and Anr. Vs.
Mr. Kunal Dasgupta and Ors. (2002) ILR 1 Delhi 250
,2002(25)PTC1(Del) that a concept can be a subject matter of
copyright. In the said judgment the concept of „Swayamvar‟ on
television was held to have a copyright as a concept, however, in my
opinion, not only on facts the said judgment would not be applicable,
but also that there cannot be any law against the law declared by the
Supreme Court in the case of R.G.Anand (supra) which holds that
there cannot be a copyright in an idea or subject matter or theme or
plot etc, with the fact that every idea or subject matter or theme or plot
etc necessarily would have some common or basic features. It is the
law declared by the Supreme Court in R.G.Anand's case (supra) that
will prevail and not that which is declared by a judgment of a learned
Single Judge of a High Court. Unless and until however the idea or
subject matter of theme or plot etc is converted into a literary work or
dramatic work or musical work or artistic work etc, the concept on its
own with its essential components, cannot be a subject matter of
copyright, as already discussed above especially with reference to the
provisions of Sections 2(y), 14 and 16 of the Copyright Act. I
therefore reject the argument urged on behalf of appellants/plaintiffs
by placing reliance upon the judgment in the case of Mr. Anil Gupta.
(supra).
11(i) Learned senior counsel for the appellants/plaintiffs then
argued that the respondents/defendants should be held guilty of breach
of confidentiality and for which purpose reliance is placed upon the
judgment in the case of Zee Telefilms Ltd. and Film and Shot and
Anr. Vs. Sundial Communications Pvt. Ltd. and Ors.
MANU/MH/0243/2003, however there is no issue of confidentiality in
the present case inasmuch as and as already stated above the
appellants/plaintiffs have conceded in the cross-examination of
plaintiff no.1/PW-1 that the concept of play along audience sitting at
home is otherwise well known existing prior to the concept 'Jeeto
Unlimited' of the appellants/plaintiffs.
(ii) In any case, the issue of confidentiality in favour of the
appellants/plaintiffs in the facts of the present case will not exist, in
view of the appellants/plaintiffs admitting in para 13 of its plaint that
they had given the consent letters that they were not to hold the media
houses responsible in case the contents of their concept is broadcasted
by a programme similar to the concept note of the appellants/plaintiffs
called as 'Jeeto Unlimited'. This aspect has been appropriately
considered and dealt with by the trial court in paras 53 and 58 of the
impugned judgment and which paras read as under:-
"53. The Plaintiffs also alleged that the said concept note was
discussed in a meeting with the defendant no.1 in Mumbai in which
representative of Defendant no.1 were present and also present were the
two plaintiffs and Ms. Gunjan Kawatra (friend of plaintiff). The plaintiffs
alleged that before this meeting they were asked to sign consent letter
which out of compulsion they had to sign.
xxxxxxx
58. The plaintiffs have twice alleged that he was made to sign the consent
letter when he met the officials of defendant no.1 and 4. The Plaintiffs in
their own pleadings under Para 13 of the Plaint have stated the effects of
signing a consent letter that 'a consent letter in the television industry
allegedly releases the media houses from any liability in case they
broadcast content that is similar to the concept note that is being
presented before them'. Despite knowing the consequences of the
consent letter, the plaintiff claimed to have been rendered helpless for
signing the consent letter twice. Yet, the plaintiff failed to produce
the contents of consent letter alongwith his plaint. And not to say no effort
was ever made by the plaintiff to call for the production of said consent
letters from the defendants,if it were in their custody."
12. This Court therefore rejects the claim of the
appellants/plaintiffs based on alleged confidentiality as regards the
concept of 'Jeeto Unlimited'.
13. In view of the aforesaid discussion, I do not find any
merit in the appeal. Dismissed.
10th AUGUST,2018/ib VALMIKI J. MEHTA, J
