Music Broadcast Limited and Ors. v Tips Industries Ltd. and Ors., The Intellectual Property Appellate Board (IPAB), OP (SEC-31D)/3/2020/CR/NZ
The issue of the amount of license fee payable by the FM Radio companies to the music companies has been the subject matter of dispute for long time. As a result of this, the court decided ten similar applications by this one order. The Copyright Amendment Act, 2012 introduced Section 31D which provides a statutory license to all broadcasting organizations desirous of communicating to the public by way of a broadcast, provided that such broadcasting organization will pay the owner of such rights royalties in the manner and at the rates fixed by the Appellate Board.
The legislature’s intent of introducing 31D was not only as a right in favour of broadcasting organizations but also with the objective to ensure public access to sound recordings over the FM radio, without subjecting the broadcasting organizations to tedious negotiations with the owners of the sound recordings.
The music companies pleaded to be able to negotiate the rate of royalty in a free market and that the royalty should not be fixed on net advertising revenue. Advertising revenue, they argued, can drop solely due to the broadcaster because of poor curation of content, sub-par understanding of consumer taste and other such concerns. They, instead, proposed the needle per hour (NPH) method or the gross revenue method.
The radio companies, on the other hand, refused to pay higher royalty on the grounds that they were promoting social welfare activities. But with the onset of privatisation of radio channels, radio companies have started to be driven by profits. Before the amendments to the Copyright Act, 1957 in 2012, when commissioning or employing the authors/composers, a film producer would be the first owner of the copyright in the literary and musical works incorporated in the cinematograph film/sound recording. Before this, there was no statutory requirement for royalty to be payable for the literary and musical works.
The right to receive royalty is usually shared right between the assignee alongside the author and music composer, however, the court was of the opinion that the liability or payment of royalty lies on the actual utilizer because payment is connected to the utilization of the work. The broadcasting organizations wanted to pay the royalty under a single head of “sound recording”, making it the duty of the producer/ music companies to share the revenues with the authors and music composers. On the other hand, the music companies argued that the authors and composers were entitled to the royalties under the separate head just as the Broadcasters were doing earlier.
Section 31D (1) reads that the broadcasting organization is the sole beneficiary of the statutory license and the license cannot be conferred upon anyone else. Therefore, the broadcasting organization alone is statutorily obliged to make payment of the royalty to the owners of the works. In this way, the broadcasters are utilizing the said work for commercial benefit and the said liability of the broadcasters cannot be shifted or imposed on any other participant. Therefore, the broadcasting organization is the sole entity that has to pay the royalties as prescribed.
The IPAB then went on to highlight the necessity that such a provision is applied in accordance with the due process and keeping in mind the interests of the copyright owner as balanced against the public interest to access music by way of radio broadcast. Due to this, giving prominence to the commercial interests of radio broadcasters in fixing royalty rates under the said provision would be prejudicial to the copyright owner and skew the balance heavily in favour of the radio broadcasters contrary to the letter and spirit of the said provision. Thus, on a careful reading of the statute, it was held that Needle per Hour (NPH) would be the appropriate method for the determination of the rate of royalty.
Link to the order: https://ipab.gov.in/ipab_orders/delhi/OP-(SEC-31D)-1-to-9-2020-CR-NZ-and-OP-(SEC-31D)-1-2020-CR-WZ.pdf
Raj Television Network Limited v. Kavithalaya Productions Private Limited and Ors., High Court of Madras, O.A. No. 446 of 2020 in C.S. (Comm. Div.) No. 244 of 2020
The 1st defendant, is a producer and first owner of the entire copyright with respect to each one of the said 34 movies and the 1st defendant had assigned and transferred the rights now sought to be protected by the plaintiff by an agreement dated 06.02.2001 for a consideration of INR 65, 00,000/- (Rupees sixty five lakhs) for a period of 99 years. The plaintiff had agreed not to assign any further rights to any other party with consulting the plaintiff herein. The plaintiff had been exploiting the films by marketing the DVD rights and by telecasting the films through Satellite Television network on their channel Raj TV. After the advent of the internet, they have been streaming the films in the various internet platforms known as OTT platform.
The plaintiff then came to know that two of the films Annamalai and Duet were distributed on the 3rd defendant’s streaming platform, following which, the plaintiff issued a notice to the 3rd defendant. The 1st defendant sent a reply stating that the claim of the plaintiff for internet rights was illegal and the plaintiff did not possess any such right. The plaintiff disputed the said claim.
This was followed by a series of notices being sent by the plaintiff and the defendants to one another. Subsequently, the suit was preferred seeking reliefs under the Copyright Act, 1957, for a declaration that the plaintiff is the absolute owner of the entire copyrights. The court passed an interim order in the favor of the plaintiff.
A copy of the order may accessed be here.
Shamoil Ahmad Khan vs. Falguni Shah and Ors., High Court of Bombay, MANU/MH/0590/2020
The plaintiff in this matter, is the author of the popular short story ‘Singardaan’. The defendant is the producer of a web series which is also titled Singardaan, same as the plaintiff’s story. After the plaintiff became aware of the defendant’s web series, the plaintiff approached the court, seeking a temporary injunction against the defendant for making a web series of the same name with a similar story line. Both had the same base script of a vanity mirror belonging to someone bringing out in another user a change in appearance or behaviour, which mirrored the behaviour of the original owner of the vanity.
The court opined that, “in a written work of art, such as the story with which we are concerned here, a germ of an idea is developed into a theme and then into a plot and then final story with the help of characters and settings. It is a combination of all these elements which give a body to the work or a substance to it.”
After reviewing the facts and evidence presented the court decided that there would be a copyright violation if the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. This would be based on the effect the work creates on the reader, spectator or viewer. The court found a substantial similarity in both the storylines and ordered the defendant to restrain from making any further adaptation or use in a different format of their web series by the name of “Singardaan”, pending the final disposal of the suit.
A copy of the order may accessed be here.
Ramgopal Varma and Ors. vs. Perumalla Amrutha, High Court of Telangana, MANU/TL/0352/2020
The appellants in this matter include the director and others involved in the making of the film ‘Murder’. The respondent in this matter, had claimed that, the film is allegedly based entirely on her life story, with regard to her husband’s death. Earlier this year the Telengana High Court set aside an injunction from the Trial court, that had halted the release of the film Murder.
When the promo for the film was released on YouTube, the respondent filed a suit against the appellants for a perpetual injunction restraining the release of the film. In the lawsuit, the respondent, claimed that her right to privacy guaranteed by Article 21 of the Constitution of India, had been violated, specifically because of the appellants’ reference to her name, her husband’s name and her father’s name in various social media posts, while announcing the release of the film.
After referring to another honour killing in August 2020, the court stated that the events which had occurred in the life of the respondent are not unique to her and to her family alone. While summarizing the principle of protection of right to privacy, the court clarified that, while there was a definite right to privacy, the exception to the principle was that “once the matter becomes a matter of public record, the right to privacy is no longer subsisting and it becomes a legitimate subject for comment for press and media among others.” The court, made notice of the fact that events concerned in this case had been widely covered by newspapers and are “in public domain” because of the FIR and Session’s case filed with regard to the respondent’s husband’s death.
In the final decision given by the court, the appellants were allowed to release the film after being instructed by the court that, they were not allowed to use the names of the respondent and her family members, in order to ensure that the respondent does not suffer any further pain and anguish. The court also directed the appellants, to publish a disclaimer stating that the film was a work of fiction.
A copy of the order may accessed be here.
Super Cassettes Industries Private Limited and Ors. Vs. Nandi Chinni Kumar and Ors., High Court of Telengana, Civil Miscellaneous Appeal Nos. 355, 356, 357 and 358 of 2020
The plaintiff in this case is a music record label and film production company and the defendant no.1 is a former gangster turned football player. According to the plaintiff, defendant no.1 had signed an agreement with the plaintiff, through which defendant no.1 gave the film rights to his life story to the plaintiff for a sum of money. Following this, the plaintiff registered the film script with the title ‘Slum Soccer’ with the Telangana Cinema Writers’ Association. However, soon after registering the film script for Slum Soccer, the plaintiff read about a film titled ‘Jhund’, which was based on the life story of defendant no.2 who was defendant no1’s coach. Although the film Jhund was based the life story of defendant no.2, the film’s story also showed the story of defendant no.1. The plaintiff then informed defendant nos. 1-12, about the previous agreement that the plaintiff had signed with defendant no.1, which gave the plaintiff absolute rights over defendant no.1’s life story and that if the defendants continued shooting for the film Jhund, they would be liable for copyright infringement. The plaintiff also issued a cease and desist notice to defendant nos.1-12 and stated that defendant no.1 admitted to the plaintiff that he had signed an agreement with defendant no. 3 subsequent to assignment of rights in favour of the plaintiff by receiving substantial consideration and also permitted the defendant no.3 to incorporate the character of 1st defendant in the said film. The plaintiff contended that he owns the concept, thought, characterization, image, identity and expression apart from copyright in respect of true life story events of 1st defendant, that the action of defendant nos. 1 to 12 in making the said film with a character/image/identity and scenes based on the true life story events of the 1st defendant constitutes infringement of the copyright of the plaintiffs original work ‘Slum Soccer’, that defendant nos. 1 to 12 have without his consent used the literary work and/or its constituent elements contained in the plaintiff’s copyrighted story.
The plaintiff filed a suit seeking a perpetual injunction prohibiting defendant nos. 3 to 12 from exhibiting or broad-casting the movie Jhund from all the theatres in India as well as abroad. In response to the suit, the defendants stated that no case had been made out by the plaintiff for grant of injunction against them and other defendants from proceeding with the release of the film, titled ‘Jhund’. Further, defendants 3, 5, 6 and 7 also contended that it is possible to make a movie only on the coach, the 2nd defendant, without having the character of the 1st defendant, the alleged Don turned Footballer who captained the Indian Slum Soccer Team in the Slum Soccer World Cup. But it was held that, the ‘probability’ of the doing it is low because the marketability of a movie about a celebrity sportsperson is far higher than the marketability of a movie about his coach without the celebrity pupil/sportsperson which in this case was defendant no.1 and being a commercial venture, the risk of the film only about the coach without the celebrity pupil ending in a flop, is much more. The court observed from the teaser of the film ‘Jhund’, that there are distinct similarities in the plot, depiction and the life and story of the protagonist of the film as with the registered script of ‘Slum Soccer’ of the plaintiff, and the defendants have not specifically denied any of these aforementioned allegations of the plaintiff with regard to similarities between the film scripts. The court observed that there was a strong prima facie case of infringement against the defendants and opined that an interim injunction should be granted in favor of the plaintiff.
Link to order: https://indiankanoon.org/doc/82857163/
Disney Enterprises, Inc. and Ors. vs. Kimcartoon.to and Ors., Delhi High Court, CS(COMM) 275/2020
The plaintiffs in this matter were companies incorporated in the United States of America, involved in the business of creation, production and distribution of motion pictures and cinematograph films. The defendants in this lawsuit included several rogue websites that had provided users with free access to pirated content. The Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MEITY), were also included as co-defendants by the plaintiffs, along with several ISPs (Internet Service Providers). The Plaintiffs filed a lawsuit against the defendants for streaming original and copyrighted content created by the Plaintiffs, without acquiring any prior authorisation from the Plaintiffs. After reviewing the list of the infringing websites submitted by the Plaintiffs, and the content being made available on those websites, the court opined that the Defendants were infringing the plaintiffs’ copyrights.
The court therefore restrained the Defendants from hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same on their websites through the internet in any manner whatsoever, any cinematograph work, content, programme or show in which the Plaintiffs owned copyrights. Further, the court granted an interim injunction in favour of the Plaintiffs, in order to ensure that the original content created by the Plaintiffs was protected, and directed the Plaintiffs to file the necessary applications before the court in case of any further infringement by these websites. The court also ordered DoT and MEITY to issue necessary directions/notifications to various ISPs in general, to block access to the defendants’ websites.
Link to order: https://indiankanoon.org/doc/10984797/
Vinay Vats vs. Fox Star Studios India Pvt. Ltd. and Ors., Delhi High Court, I.A. 6351/2020 in CS(COMM.) 291/2020
The plaintiff in this lawsuit was a writer and the defendant was a production house. The Plaintiff filed this lawsuit claiming to be the original scriptwriter and own the copyright in the script of the film titled ‘Tukkaa Fitt’, and alleging that the film ‘Lootcase’, produced by the Defendant, had the same story as the film Tukkaa Fitt, produced by M/s. AAP Entertainment Limited. However, due to the sudden death of one of the producers, the film’s release was indefinitely delayed, despite the production of the film being completed in November 2012. The Plaintiff in the lawsuit claimed that, the film ‘Lootcase’, was only recently brought to the Plaintiff’s attention and when the Plaintiff watched the trailer, the Plaintiff noted several similarities between Lootcase and Tukka Fitt.
The film Lootcase was set to release on 31st July, 2020. However, the Plaintiff chose to file a lawsuit for the grant of an interim injunction mere days before the release of the film, despite the film’s trailer being launched almost a year before the release date. The story of the film Lootcase revolved around a suitcase full of cash, and several people looking for that suitcase after it went missing. The Defendants stated that the film’s story line was a very common one, which had been previously used in several films. Further, the Defendants stated that according to the documents submitted by the Plaintiff, the producers of the film Tukkaa Fitt, had paid a certain sum of money to the Plaintiff, to purchase the script of the film, and all the rights subsisting therein. Due to this, the extent of the Plaintiff’s rights over the film’s script needed to be clarified. The court observed that, copyright can only be granted for the expression of an idea and not for the idea itself, and that idea can be expressed in several forms. According to the court, in order to determine whether two films were exactly the same in terms of the execution, the most reliable way to do determine that, was to see the audience’s reaction to both the films. If the audiences found any similarities in both the films, then the next step was to ascertain the extent of such similarity.
The court opined that the balance of convenience lay in favour of the Defendant. The court was not convinced with the Plaintiff’s claim of becoming aware of Lootcase’s release only recently, since the media had been covering the film for a year before the release date. Further, the court stated that by filing a lawsuit only a few days before the film’s release, the Plaintiff tried to compel the court to expedite the proceedings to get an interim injunction to halt the film’s release. The court therefore, decided in favour of the Defendant and dismissed the Plaintiff’s plea for the grant of an interim injunction.
A copy of the order may accessed be here.
Microsoft Corporation and Ors. vs. Satveer Gaur and Ors., Delhi High Court, CS (COMM) 1324/2016, CCP (O) 134/2010 and IA 2667/2016
The Plaintiffs in this matter were Microsoft Corporation (‘Microsoft’), situated in USA, Microsoft Corporation Pvt. Ltd. a wholly owned marketing subsidiary in India, Adobe Systems incorporated in USA, and Quest Software Inc., incorporated in USA. The defendants in this matter included Defendant No. 2 which appeared to be a company named ‘Chetu’,and was in the business of providing IT services and solutions to its clients. The Plaintiffs in this case accused the Defendants of infringing their intellectual property rights, by committing copyright piracy, and selling the pirated versions of their software using the same kind of packaging that the plaintiffs would have used, to sell the software products. The Plaintiffs alleged that Defendant no.2 copied their respective software programs without acquiring the required licenses and permissions from each of the plaintiffs.
Plaintiffs claimed that such unauthorised copying, duplicating and selling of the Plaintiffs’ software programs caused serious harm to the Plaintiffs’ goodwill and reputation along with monetary losses to the Plaintiffs’ businesses. The Plaintiffs claimed that they received information on their Business Software Alliance (BSA) website reporting the usage of unlicensed/pirated software programs by the Defendants on their computers. The BSA is a non-profit association of global software companies including the plaintiffs, formed to fight software piracy through large scale use of unlicensed/pirated software and thus strive to promote a safe and legal digital world. The Plaintiffs also conducted an investigation of their own, through which they learned that the Microsoft and Adobe software programs were being used widely by Defendant no. 2 to service its clients. This was further confirmed when the investigator spoke with Defendant no.1, Mr. Satveer Gaur, who worked as a system administrator with Chetu. After the investigation was completed, the plaintiffs filed a copyright infringement suit in the Delhi High Court, against the defendants and presented before the court the information gathered through the investigation.
The defendants denied the claims made by the plaintiffs and stated that they had the required licenses and were authorized dealers of the plaintiffs’ products. Following this, the Local Commissioner had confiscated and sealed the computers being used by the defendants to conduct their business, and concluded in his report that that the defendants were in fact using unauthorized/unlicensed versions of the plaintiff Nos. 1 and 3’s software on several computer systems. The defendants however, did not contest these allegations made by the Commissioner, as a result of which the court ruled in favour of the plaintiffs. The court granted a permanent injunction against the defendants, along with the monetary compensation deemed necessary by the court.
A copy of the order is available here.
Jagran Prakashan Limited vs. Telegram FZ LLC & Ors., Delhi High Court, CS(COMM) 146/2020
The plaintiff in this matter was a publishing company which published a leading newspaper in Hindi, known as Dainik Jagran, and had registered the associated trademarks for the newspaper in several classes. Readers could either subscribe to the physical copy of the Dainik Jagran newspaper, or access the digital version of the newspaper from the corresponding webpage. The subscribers of the digital version of the newspaper could access it only from the webpage and were not permitted to download the PDF version of the newspaper. The Defendant offered a cloud based instant messaging service called Telegram and the app version of this service is available on several operating systems for users to download. This app also allowed users to anonymously start channels and post content on these channels. Soon many users of Telegram started various channels named after the plaintiff’s publication and posted the news articles published on the plaintiff’s website, in PDF format which could be downloaded by other users. Since the Defendant claimed that it was an intermediary and did not reveal the identity of the users that started these channels, which were infringing on the plaintiff’s content, the Plaintiff sent a notice to the defendant asking them to shut down the infringing channels. However, after sending four such notices to the defendant and not receiving any response, the Plaintiff then filed a lawsuit in the High Court of Delhi and included the anonymous users who had started the infringing channels, as co-defendants to the lawsuit.
As soon as the Defendant received the notice from the court, it responded claiming that the infringing channels had been blocked, but the Plaintiff provided evidence that these channels were in fact still active. The Plaintiff also stated that the user base for one of the infringing channels on the defendant’s platform was increasing each day. After examining all the evidence presented by the Plaintiff, the court ruled in favour of the Plaintiff and granted an ad-interim injunction. Further, the court agreed with the Plaintiff’s contention that the Defendant could not continue to claim its intermediary status, and ordered the Defendant to block the infringing channels and to disclose the names of all the users who had started each of these channels.
A copy of the order may be accessed here.
Ashutosh Dubey vs. Netflix Inc. and Ors., Delhi High Court, I.A. 3754/2020 in CS(OS) 120/2020
This lawsuit primarily dealt with the issue of defamation, allegedly caused due to certain derogatory remarks made by the protagonist in a web-series known as “Hasmukh”. The plaintiff in this matter was a lawyer by profession and the defendants included the digital streaming platform Netflix, on which viewers could access the web-series, Hasmukh. The plaintiff, while watching Hasmukh, came across a dialogue in an episode, which in his opinion was allegedly derogatory to the legal profession. Following this, the plaintiff filed a suit, seeking a decree of permanent injunction against the defendants further airing or streaming of the episodes of Web-Series (TV show) “Hasmukh” particularly Episode 4 of Season 1. The web-series was about an aspiring stand-up comedian, who could only perform well on stage, if prior to his performance, he committed a murder of a victim who was either corrupt or an extremely ruthless person. In the scenes preceding the impugned dialogue, Hasmukh was being duped and harassed by a corrupt lawyer in Mumbai, which compelled him to murder the lawyer and then proceed to make certain statements about lawyers and the legal profession, in his stand-up comic act, while directly making references to lawyers in Mumbai. The impugned dialogue when translated in English was as follows, “This is the first city I have seen where even the thieves are rich. But out here, they’re called lawyers. Your lawyers are the biggest scoundrels and thieves. These so-called upholders of law will never be brought to justice because they rape you with their pen. People say the law is blind. But I say the law is dirty because every lawyer carries a little stick in his hand.”
The plaintiff took offence to this dialogue, as it allegedly attacked the entire legal community and was therefore defamatory in nature. The counsels for the defendant stated that, lawyers could not be defamed as a class of persons, nor could the plaintiff be defamed by a general reference to a class, to which the plaintiff belongs. It was held that, as lawyers consist of a large group of individuals and that the impugned dialogue did not refer to or name a particular individual or more specifically the plaintiff, it therefore cannot be considered as defamatory in nature. The court stated that the entire theme of the show and the dialogues therein, were meant to be viewed purely as satire, and must not be construed in the literal sense, as this was a known fact with regard to jokes made by stand-up comedians.
Further, for a statement to be deemed as defamatory, even towards a group of people, it is necessary that the person making such a statement refers to an individual from that particular group or class of people. The plaintiff in this case was unable to prove that the impugned dialogue refers to the plaintiff or that it has already caused or could potentially cause some kind of serious loss or damage solely to the plaintiff’s reputation. The court opined that the balance of convenience was not in favour of the plaintiff, following which the court dismissed the plaintiff’s plea for an ad interim injunction and ruled in favour of the defendants.
A copy of the order is available here.
Super Cassettes Industries Pvt. Ltd. vs. Prime Cable Network and Anr., Delhi High Court, CS(COMM) 594/2016
The plaintiff, in this matter, was in the business of producing and marketing music cassettes, compact discs, etc., in addition to producing and distributing films. Defendant no.1 was a large provider of ground cable network services in the State of Uttarakhand and Defendant no.2 was an individual working for Defendant no.1. The plaintiff claimed to be the owner of a large number of copyrights in music and literary works, films and sound recordings, including Hindi film songs, non-film songs, and songs in regional languages. As a part of its business activities the plaintiff used to grant licenses to various entities to allow them to use its copyrighted works. Such entities included FM Radio Stations, Television Broadcasters, Multi-System Operators (MSO), etc. The plaintiff alleged that Defendant no.1 used to operate as a MSO and broadcasted and/or communicated without permission, the plaintiff’s copyrighted sound recordings, the underlying lyrics, musical composition and the audio-visual works, to the public through its cable network, thereby infringing the plaintiff’s copyright. After the plaintiff learned about this alleged infringement, it initially sent notices informing Defendant no.1 of its infringing activities and directed Defendant no.1 to acquire the necessary licenses to broadcast Plaintiff’s content. Defendant no.1 however, did not respond to any of these notices, and continued to broadcast infringing content through its cable network. Following this, the Plaintiff filed a copyright infringement suit against Defendant no.1 in the Delhi High Court and in addition to this the Plaintiff also conducted an investigation and presented the findings from the investigation as evidence in court. The evidence included the recordings of the infringing content being broadcasted on Defendant no.1’s cable network, which substantiated the Plaintiff’s claims of copyright infringement.
Upon reviewing the facts of the case and the evidence presented by the plaintiff, the court decided in favour of the plaintiff and granted an order of permanent injunction. The court also ordered the defendants to pay damages to the plaintiff.
A copy of the order is available here.
M/s. Indian Record Manufacturing Co. Ltd. vs. Agi Music Sdn Bhd, Illaiyaraja and M/s.Unisys Info Solutions Private Ltd., Madras High Court, C.S.No.296 of 2016 & O.A.No.338 of 2010
The plaintiff in this matter was a renowned music company engaged in the production, distribution and sales of music albums in various forms. Defendant no.2 was a well known music composer, who, over the years had composed music for several South Indian films. Since this suit was contested solely by Defendant no.2, Defendants no.1 and 3 remained ex-parte. The subject matter of this dispute was the music that Defendant no.2 had composed for many films produced by the Plaintiff, by virtue of which Defendant no.2 claimed to be the author these musical compositions, and was in the process of selling the copyrights to Defendant no.1. The Plaintiff was also made aware of the same, following which it filed a copyright infringement suit against Defendant no.2., claiming that it had acquired the copyright and other rights subsisting in the musical compositions from the respective producers of the films, as they were the first owners of such copyright. The court accepted the Plaintiff’s copyright ownership claims in the musical compositions, and stated that, since the producers of the film had commissioned the musical works composed by Defendant no.2, the producers were the first and rightful owners of such compositions. The court emphasised the definition of the term ‘cinematograph film’, as defined in the Copyright Act, and stated that it is the producer who puts together several elements to make a complete film. Therefore, only a producer was legally vested with the authority to assign to third parties, the individual rights in each of these separate elements.
The Madras High Court observed that, Defendant no.2 was unable to furnish the necessary evidence to support the claims of authorship and subsequent ownership over the musical compositions. The Plaintiff on the other hand was able to satisfy the court, by submitting the agreements between the plaintiff and the respective producers to substantiate the claims of ownership of copyright made by the Plaintiff. As a result of this, the order was decided in favour of the plaintiff, and the claims of Defendant no.2 were dismissed.
Link to order: https://indiankanoon.org/doc/98552858/
HT Media Limited and Ors. vs. www.theworldnews.net and Ors., Delhi High Court, MANU/DE/0563/2020
The plaintiffs in this case were part of a media conglomerate which was also engaged in the business of publication of news articles, among other media related businesses. The multiple defendants in this suit included the infringing website, which aggregated content and published the same from various sources, and the entity managing this website (defendant nos.1 & 2), the German company hosting the infringing website (defendant no.3), the privacy service provider (defendant no.4), the erstwhile registrar of the infringing website (defendant no.5), and the internet service providers (ISPs) (defendant nos.6-14), whose assistance the plaintiffs sought to block the concerned website. The departments of the Government of India (defendant nos.15 & 16) were also impleaded as defendants in this suit, since they were required to issue notifications with regard to blocking of the impugned website. The plaintiffs conducted a private investigation through which it was discovered that Defendants no.1 and 2 were reproducing and publishing content on the impugned website, that originally belonged to the plaintiffs, without taking the required permission or prior authorization from the plaintiffs, to allow such publication. The Defendant no.1 was also using the Plaintiffs’ copyright and registered trademarks on its website, due to which the Plaintiffs filed a suit alleging copyright and trademark infringement, in addition to the claims of passing off, primarily by Defendants no.1 and 2.
In light of the evidence presented by the Plaintiffs, the Delhi High Court observed that, while the defendants in fact, did acknowledge and attribute to the Plaintiffs the articles published on the impugned website, they however, did not provide a link to permit a user to directly access the article on the Plaintiffs’ own website. The Plaintiffs submitted screenshots of the impugned website to demonstrate the availability of large-scale infringing content. The evidence also reflected that the impugned website had a bill payment option, which indicated that its activities were of a commercial nature, thereby violating the statutory protection granted to the Plaintiffs’ intellectual property rights under the respective laws.
After reviewing the evidence presented by the Plaintiffs, the court opined that since the Plaintiffs were able to substantiate their claims with the evidence that they had presented and Defendants no.1 to 5 did not make any attempt to appear in court or respond in any manner to the notices sent to them, the order granted by the court would be ex-parte. In conclusion, the court decided in favour of the Plaintiffs by granting a permanent injunction along with the damages, which were to be paid by Defendants no.1 to 5.
Link to the order : https://indiankanoon.org/doc/187541084/
Star India Pvt. Ltd. vs. moviestrunk.com and Ors., Delhi High Court, MANU/DE/0585/2020
This suit dealt with the issue of copyright infringement by various streaming websites that continue to provide access to illegal content. In this present matter, the Plaintiff, which was in the business of producing and distributing films, filed a copyright infringement suit against multiple defendants, who ran different streaming websites, for illegally streaming the plaintiff’s film ‘Mission Mangal’. The Plaintiff also included as defendants in the suit, those departments of the Government of India, which issue notifications with regard to blocking of the impugned websites. Prior to the release of the Plaintiff’s film ‘Mission Mangal’, the Plaintiff had conducted a private investigation into the Defendants’ websites and submitted the findings of these investigations as evidence before the court. The Plaintiff had confiscated infringing materials, including content which was made available on the Defendants’ websites to download and view, without the required authorization from the plaintiff, thereby making such content infringing.
The evidence presented to the court contained screenshots of all the Defendants’ websites that showed the Plaintiff’s film being made available on the defendants’ websites for downloading and streaming, prior to the official release date of the film. The Plaintiff also identified those internet service providers (ISPs), who were providing services to the Defendants’ websites, following which the Delhi High Court ordered these ISPs to block access to the Defendants’ websites and also ordered the suspension of the Defendants’ domain names by the corresponding authority. Further, the court directed the Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MeitY) to issue a notification to any website that the Plaintiff notified to be illegally transmitting or broadcasting the cinematograph film ‘Mission Mangal’ in any manner.
Since the court did not receive any response from majority of the Defendants to its notices, the order was decided in favour of the Plaintiff, granting the injunction along with damages deemed appropriate by the court.
Shivani Tibrewala vs. Rajat Mukherjee and Ors. (15.01.2020 – BOMHC): MANU/MH/0060/2020
This case referred to the alleged infringement of the Plaintiff’s film script by the Defendant. The Plaintiff had originally produced a play titled ‘The Laboratory’, following which the Plaintiff decided to adapt the play into a film and accordingly wrote a new script for the film. Shortly after this, the Defendant had released a film, titled ‘Umeed’, which also dealt with the issue of clinical trials, similar to the Plaintiff’s play. Based on this similarity, the Plaintiff filed a copyright infringement suit against the Defendant. After carefully examining the scripts of both, the Plaintiff’s the adaptation of the play ‘The Laboratory’ and the defendant’s film ‘Umeed’, and subsequently watching the Defendant’s film, the Bombay High Court decided in favour of the Defendant. According to the court, while the underlying idea behind both the scripts was the same, in that they both dealt with clinical trials, the stories were however, narrated through completely different scenarios. The court has also noted that, the Plaintiff has agreed to the differences in the script of the play and that of the Plaintiff’s own film, which was inspired by the play. This indicated that there were several different ways to express an idea.
In conclusion, the court held that, there could be no monopoly of copyright in the idea or subject of a film based on the theme /subject of clinical trial which was a part of the public domain, and dismissed the plaintiff’s case.
A copy of the order is available here.
Giant Rocket Media And Entertainment Pvt. Ltd. vs Ms. Priyanka Ghatak And Ors., Delhi HC, CS(COMM) 736/2019
This case involved three defendants, wherein, Defendant no.1 was a scriptwriter, Defendant no.2 was a production house and Defendant no.3, was a retired Joint Commissioner, Central Bureau of Investigation (CBI) and the author of the book “CBI Insider Speaks: Birlas to Sheila Dikshit”, from which, chapter no.7 was to be adapted by the Plaintiff into a web-series. The Plaintiff claimed that Defendant no.2 along with help of Defendants no. 1 and 3, had infringed upon the Plaintiff’s idea to adapt the aforementioned chapter no.7 of, into a web-series, for which the Plaintiff had previously sought the rights, from Defendant no.3. Chapter no.7 from the book, was based on the true story of the murder of Syed Modi, who was an eight- time national badminton champion. The court stated that the primary issue in this case was whether the chapter itself, as written by Defendant no.3, fulfilled the originality of expression requirement of the Copyright Act. In the court’s opinion, since the story covered in chapter no.7 was a true story, it was already a part of the public domain, due to which it may not have qualified as copyrightable work.
Based on this observation, the Delhi High Court held that, since the story mentioned in chapter no.7 was not a fictional story, and was merely the narration of the crime and its prosecution, the Plaintiff did not have sufficient grounds to claim exclusive rights over the contents of chapter no.7, of the book, written by Defendant no.3. Each of the scripts belonging to the Plaintiff and Defendant no.2 respectively, narrated their own versions of this true crime story. In light of the aforementioned facts, the court concluded that, while the Plaintiff did not have a prima facie case for interim relief, Defendants no. 1 and 2 also did not act in a fair manner. In addition to this, the evidence provided was insufficient to show that the balance of convenience lay with the Plaintiff. As a result of this, the court dismissed the Plaintiff’s appeal for an injunction against the web-series released by Defendant no.2, and vacated the ex-parte ad-interim order.
Link to the order: https://indiankanoon.org/doc/62980045/
Authored and compiled by Neharika Vhatkar and Ashwini Arun (Associates, BananaIP Counsels)
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