The Madras High Court dismissed a copyright infringement suit filed by a television broadcaster against two defendants for unauthorized telecast of a Malayalam film. The court held that the five-year exclusive telecast rights commenced from the date of the agreement, not the date of tele-cine transfer, as stipulated in the contract.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26. 06..2014
CORAM :
THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI
C.S.No.294 of 2002
Asianet Communications Ltd, rep by its DGM (Finance) Srinivasa Raghavan .... Plaintiff vs 1. KAIRALI Channel Owned and Controlled by Malayalam Communications Ltd rep by its Managing Director and also its Chief Operations Officer Krishna Kumar “Chandragiri”, Vikramapuri Hills – 61 Karuvankonam, Kavadiyar P.O Thiruvananthapuram 695 023 2. President Movies Rep by Shri P.D. Abraham alias Appachan Jail Road, P.O Puthiyara Kozhikode 673 004 ... Defendants
Suit filed for permanent injunction, restraining the defendants, their agents, men, representatives, assigns and anyone whosoever claiming through the defendants from in any manner infringing the plaintiff's copyright in respect of the exclusive Satellite Television Telecast rights of the Malayalam feature film “VIETNAM COLONY”, in whole or reproduction of any part thereof, by exploitation for public or private viewing by broadcasting on the 1st defendant's channel or any other channel by satellite telecast and https://hcservices.ecourts.gov.in/hcservices/ directing the 1st defendant to pay to the plaintiff damages amounting to a sum of Rs.2,00,000/-(Rupees two lakhs only)
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along with interest 18% per annum from date of plaint till date of realisation.
Plaintiff : Mr. Perumbulavil Radhakrishnan 1st defendant : Ms.R. Vaigai for 2nd defendant : Mrs.S. Subbulakshmi
JUDGMENT
Suit is on account of infringement of plaintiff's copy
right in respect of telecast rights of a Malayalam Feature Film “VIETNAM COLONY”, consequential permanent injunction and damages.
2.The plaintiff is a Television Broadcasting Company running Malayalam Channel called ASIANET. The plaintiff acquired exclusive rights for the telecast of the Malayalam
Feature Film “Vietnam Colony”, for a period of five years from the second defendant who is the negative right holder of the
said film. The agreement was entered into on 14.8.1995 for a
consideration of Rs.60,000/-. The first part of the consideration was to be paid within 90 days from the date of 'Tele cine transfer” and the same was paid on 19.10.1997 and such 'Tele cine transfer' was granted. The second and final part of consideration was paid on 11.12.1997. Having paid the
first payment, a lab letter dated 28.7.97 was given to the
plaintiff evidencing tele cine transfer, thereby the
plaintiffs have become copy right holder of the tele film
https://hcservices.ecourts.gov.in/hcservices/ “Vietnam Colony” for a period of five years from the date of
tele cine transfer.
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3.The plaintiffs had also telecasted the said film in their channel on various dates from 1997 to 2001. The first defendant is also a television channel under the name and style of “KAIRALI”. The plaintiff learnt that the first defendant has telecasted the said film on “KAIRALI” TV Channel
on 14.4.2002. The defendants, knowing fully well that the plaintiff is having the copy right for five years from the date of tele cine transfer i.e. 28.7.1997, had infringed the copyrights of the plaintiffs. Therefore, they are liable to be injuncted from further telecasting and the plaintiffs are entitled for damages of Rs.2,00,000/-.
4.On notice, the defendants 1 and 2 appeared and the 1st defendant has filed written statement. The sum and substance of the written statement are as follows:
was the negative right holder of the feature film “Vietnam Colony”. The
plaintiff entered into an agreement dated 14.8.1995 for a period of five years which expired on 13.8.2000. It is
not correct to state that the plaintiffs are the exclusive right holders of the film from 28.7.1997 i.e., from the date
of tele cine transfer. The 2nd defendant
has granted exclusive right to the 1st
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defendant by an agreement dated 29.10.2001 for a period of five years and aired the film on 14.4.2002.
(b)The first defendant came to know that
the plaintiff was intending to telecast a film on 24.3.2002, they wrote a letter requesting the plaintiff to desist from telecasting the same. The first defendant had clearly mentioned that they have an exclusive right from 29.10.2001 and in spite of such letter the plaintiff proceeded to telecast the film on 24.3.2002. (c)The allegation that the plaintiff has the right from the date of tele cine transfer is not true. The perusal of agreement would show that it is a later addition and without the knowledge of the second defendant. Therefore, the plaintiffs do not hold copyright of the film “Vietnam Colony” and the suit is not maintainable.
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5.Based on the above averments, this court framed the
following issues:
five years from the date of tele-cine transfer?
https://hcservices.ecourts.gov.in/hcservices/ entitled to the reliefs prayed for?
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6.The plaintiffs have examined P.W.1 and marked Ex.P.1
to P.8 and on the side of the defendants D.W.1 was examined
and D.1 to D.4 were marked.
restraining the defendants from infringing the plaintiff's copyright of the feature film “Vietnam Colony”. According to the plaintiff, they have entered into an agreement with the
second defendant who is the negative right holder, by an
agreement dated 14.8.1995. Admittedly, the agreement was for a
period of five years. The said agreement was not denied between the parties.
8.In usual course, the five years has to come to an end on 13.8.2000. The first defendant has entered into an
agreement with the second defendant on a similar agreement
dated 29.10.2001. In normal course, after the expiry of the
plaintiff's agreement period, the first defendant's agreement
becomes valid and the plaintiffs do not have copyright and
cause of action for the suit. However, the case of the
plaintiffs is that the five period periods commence from the
day of tele cine transfer i.e., on presentation of a letter by
the negative right holder addressing the laboratory for
issuing the prints to the agreement holder. If the plaintiff's case has to be accepted, the period has to commence from 28.7.1997 and the period of five years ends up on 27.7.2002.
9.If the case of the plaintiff is to be accepted, the https://hcservices.ecourts.gov.in/hcservices/ agreement dated 29.10.2001 by the first defendant will amount
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to infringement of copy right.
10.Mr.Perumbulavil Radhakrishnan, learned counsel for
the plaintiff would submit that the agreement period commences from the date of tele cine transfer which is evidenced by the agreement dated 14.8.1995, which is marked as Ex.P.2.
dated 9.3.2010 M/s Vijaya Colour Lab has stated that they have received instructions from the second defendant on 28.7.1997 and thereby assigning the satellite telecast right
in favour of the plaintiff for a period of five years from 28.7.1997 to 27.7.2002.
12.The learned counsel would also rely on an undated
letter addressed by the second defendant to the said colour lab directing them to handover the negative rights of the subject matter of the film to the plaintiff. According to the learned counsel, it is a clear case of infringement of copyright and the plaintiffs have to succeed in the suit.
13.On the other hand, Ms.R. Vaigai, learned counsel
for the first defendant would submit that the agreement for five years starts only from the date of agreement and not from
the date of tele cine transfer. The learned counsel would submit that the agreement has to be read in whole and the
mention about “ from the date of tele cine transfer” is only an addition and the second defendant has not come forward and
supported the case of the plaintiff and the plaintiff has also https://hcservices.ecourts.gov.in/hcservices/
failed to prove the same.
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14.The learned counsel pointed out that the letter from the Laboratory cannot be relied on as they are not party to the agreement. According to the learned counsel, in the absence of a specific covenant in the agreement it cannot be said that five years right starts from 28.7.97.
15.The learned counsel also relied on a xerox copy of the agreement between the plaintiff and the 2nd defendant wherein the term “ from the date of tele cine transfer” is missing. Therefore, according to the learned counsel, the suit is not maintainable and the relief sought for cannot be granted.
16.Heard and perused the materials available on
record.
17.As stated earlier, the main dispute is whether five years rights for the plaintiffs commences from the date of agreement or the alleged date of tele cine transfer. P.W.1,
in his cross examination would explain what is tele cine transfer.
“Tele-cine transfer means “Normally when the shooting is done, it will be taken in the form of sound negatives and picture negatives, since we are T.V. Channel to telecast the feature film the picture as https://hcservices.ecourts.gov.in/hcservices/
well as the sounds in the negative form should be transferred to the U-matic tape
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form. Then only this can be up-linked to the satellite and from there it will be down-linked to the ground. The process of transferring the pictures from the negatives to the U-matic tapes is called as Tele-cine transfer”. The original copy right holder will be having the custody of the negatives of the film Vietnam Colony. It is correct to state that the original copy right holder will be having the negatives of the film in the custody of the Laboratory”
and on payment of the consideration, the negative right holder
has to handover the negatives to the Laboratory to transfer
the same from the negatives to the U-matic tapes to enable the
TV channels to broadcast the film via satellite.
19.It is also understood that the original owner may
keep the negatives in their custody or the negatives may be in the custody of the colour lab. In any event, unless an authorisation letter is given by the negative holder, the lab
will not process the negatives to U-matic tapes.
that the period of rights assigned to the plaintiffs for five years from the date of tele cine transfer. The relevant clause of the terms of the agreement is as follows:
THIS AGREEMENT WITNESSETH AS FOLLOWS:
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'Said Rights' above mentioned in respect of the said picture to the First Party for a period of 5 years, from the date of tele cene transfer.
2. In consideration of the Second Party granting the 'Said Rights' of the said picture in favour of the First Party, the First Party hereby agree to pay a sum of Rs.60000/- (Rupees Sixty thousand only) as royalty and the mode of payment shall be in the following manner: a. 40% of total amount due, Rs.24,000/(Rupees twenty four thousand only) will be paid not later than 90 days from the date of telecine transfer of the negative of the said picture to video u-matic/Betacam.
b. Balance of 60% of total amount due, Rs.36,000/-(Rupees thirty six thousand only) will be paid after first telecast of said picture in full or within one year from the date of telecine transfer whichever is earlier”.
21.Ex.P.5 is a letter dated 9.3.2010, given by Vijaya Colour Laboratory. According to this letter, the Laboratory
will confirm that the second defendant had given an https://hcservices.ecourts.gov.in/hcservices/ authorisation letter dated 28.7.1997 for a period of five
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years from the said date.
22.At the outset, this court is not inclined to accept this letter for two reasons. First, this letter was obtained only on 9.3.2010 at the time of examination of witnesses and secondly the Laboratory is not a party to the agreement and they cannot confirm the period of right.
23.Ex.P.7 is a photocopy of the undated letter issued
by the second defendant to the Laboratory and as per the endorsement, the Laboratory has received the letter on 28.7.1997. This letter also cannot be relied on as neither the author of the letter nor the recipient was examined. The interesting part under Ex.P.2 is the term “ from the date of tele cine transfer”.
24.Ex.P.2 is a printed agreement where the blanks have
to be filled up according to the terms between the parties. Ex.D.4 is a photocopy of the same agreement wherein the term
“ from the date of tele cine transfer” is not mentioned.
entered into, it operates from the date of agreement, unless otherwise stipulated therein. In granting of rights, a condition may be stipulated that the agreement may come into
force from the date of making payment. In the given case, the terms between the parties are “ 40% of the total amount i.e., “40% of total amount due, Rs.24,000/- (Rupees twenty four
thousand only) will be paid not later than 90 days from the https://hcservices.ecourts.gov.in/hcservices/
date of telecine transfer of the negative of the said
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picture to video u-matic/Betacam”.
26 . Therefore, the payment is not a condition
precedent for a tele cine transfer. Payment has to be made
within 90 days from the date of tele cine transfer.
Therefore, it has to be understood that as soon as the
agreement is entered into, the negative right holder has to
issue an authorisation letter to the Laboratory either to
transfer the negatives to U-matic tapes or handover the
negatives to enable the agreement holder to convert them as U-
matic tapes.
27.If that part is not immediately fulfilled, it is
for the agreement holder to proceed against the negative right
holder and it cannot be said that the agreement commences only from the date of “ tele cine transfer”.
the learned counsel for the plaintiff that as per Ex.P.2, the
period commences from the date of tele cine transfer as the photocopy of the same agreement does not reflect the same under Ex.D.4. As stated above, Ex.P.5, which is obtained after filing of the suit and Ex.P.7 for lack of evidentiary
value, are not in support of the case of the plaintiffs.
29.It is also pertinent to point out that the
agreement for both the parties has already expired and there
cannot be any relief of injunction in favour of the plaintiffs.
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30.For the reasons stated above, this court comes to the conclusion that the period of five years did not commence from the date of “ tele cine transfer” and the second defendant has not infringed the copy right of the plaintiff. Therefore,
the issues 1,2 and 3 are decided against the plaintiff.
3 issues framed by the court
Whether the plaintiff is vested with the copyright for satellite telecast of the Malayalam cinematograph film "Vietnam Colony" for five years from the date of tele-cine transfer?
Whether the 2nd defendant had infringed the copyright by transferring rights that did not exist in them?
Whether the telecast of the suit film amounts to infringement of the Plaintiff's copyright?
Asianet Communications Ltd, rep by its DGM (Finance) Srinivasa Raghavan
Kairali Channel Owned and Controlled by Malayalam Communications Ltd rep by its Managing Director and also its Chief Operations Officer Krishna Kumar Chandragir
President Movies Rep by Shri P.D. Abraham alias Appachan
G.M. Akbar Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
