IP in India: Copyright in Cinematograph Films: A Brief Note

• To sell or give on hire or offer for sale or hire a copy of the film

• To communicate the cinematograph film to the public.

Lately in a dispute over copyright in cinematograph films in the case Moserbaer India Limited versus Movie Land [IA Nos.10052/2007 and 10722/2007 in CS(OS) No. 1625/2007] the significance of possession of copyright in cinematograph films was highlighted by the Delhi High Court.

Factual background and decision

Moserbaer India Limited, the plaintiff in the instant suit is claiming infringement of copyright by the defendants. The applications filed for interim injunction in accordance under Order 39 Rule 1 and 2 of Civil Procedure Code prays the Court for issuing an interim injunction restraining the defendants, servants, officers, distributors from manufacturing, selling, circulating or distributing the video cassettes, VCDs/ DVDs/LCDs of 66 Indian films. The contention of the plaintiff is that it has exclusive video copyright in the films which is being infringed by the activity of the defendants when the retailers and shopkeepers sell the films provided by the defendant number one. The plaintiff's detailed account of acquiring exclusive video rights of the all the films in dispute, is a feature to establish the cause of action and prayer. The reply to the plaintiff forcefully counters the allegations leveled by the plaintiff. The defendant submitted holding valid copyrights with respect to the films listed by the plaintiff. The defendant also gives, in its reply, an account of its exclusive video rights over several films. In definite terms the defendant denies any allegation of copyright infringement and emphasizes the huge litigation already going on between the parties. The defendant while refuting the allegation specifically mentions that it is dealing in manufacturing and distribution of VCDs and DVDs in Chennai and has purchased copyrights of more than 1450 Tamil films but due to business rivalry, some companies have sold the copyright of even those titles of films. These instances of copyright infringement are already subjudice before the Madras High Court and in one of the instances, an interim injunction has been granted by the High Court against exploitation and infringement of copyrights. The defendant's main contention is that the instant suit filed by the plaintiff in Delhi seeking injunction while there are matters already pending before Madras High Court and making the shopkeepers and distributors as parties to the suit is a ploy to pressurize and harass.

The Court after perusal of the documents filed as part of the plaintiff and the reply, found that the agreements entered into by the defendant were prior to that of the plaintiff in all but 5 of the films. The agreements were entered by the defendant with the original copyright holders or their assignees and therefore the defendant with the exception of 5 films was found prima facie – the lawful holder of copyrights and rights to release VCDs, DVDs and LCDs.

Elaborating further on the fact that the plaintiff failed to show prima facie better rights than that of the defendant, the Court held that “The plaintiff did not state in its plaint about the previous litigations pending between the plaintiff and defendant at High Court of Judicature at Madras. It is also apparent that the plaintiff, prima facie, in order to affect the business of defendant, subsequently made the distributors and shopkeepers, who were distributing the films of defendants party, while initially they were not made parties to the suit. Later on plaintiff filed an application under Order 23 Rule 3 that plaintiff had entered into a compromise with these shopkeepers. I find that plaintiff has failed to show that prima facie it had better rights than defendant or that defendant was infringing the rights of the plaintiff.”

The Court found the applications of the plaintiff fit to be dismissed with the exception of the 5 films. The defendant was restrained from distributing or manufacturing DVDs/ VCDs of the 5 films during the pendency of the suit.

Comments

Dispute over copyrights, this dealt above, have become the order of the day. Piracy is so huge that it has fast becoming impossible it to be measured, though there have been news reports that the Indian entertainment industry losses almost US$4 billion every year to piracy. The Ficci Frames 2008, an annual event on the entertainment industry recently made a vehement push for the draft optical disc policy but did not find favour with the government. The curbing of the menace of piracy can only protect intellectual property.

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