JUDGMENT S. Thangaraj, J. - Suit for declaration and injunction. 2. The main averments found in the plaint are as follows : The plaintiff Raj Video Vision a registered partnership firm is carrying on business in the exhibition, exploitation and distribution of motion pictures in all dimensions for commercial and non-commercial exhibition in the entire world. The 1st defendant is the producer of Tamil talkie picture titled 'Pasamalar' in limited copyright in the exhibition, exploitation and distribution of Tamil talkie picture 'Pasamalar' video rights for Indian territory and T.V. Rights for Sri Lanka for perpetual period. Accordingly, an agreement of assignment was entered into between the plaintiff and the 1st defendant at Madras on 6-1-1988. The consideration was duly paid well at the time of executing the agreement. The 1st defendant confirmed tot he plaintiff that they are entitled to enter into lease agreement and that they have not assigned the Indian Video lease rights and Sri Lankan T.V. Rights to any other third party. As pet the agreement dated 6-1-1988, the plaintiff is entitled to exploit the picture without any interference. The plaintiff has received a letter dated 10-3-1987 from the 2nd defendant claiming that they hold the entire copyright of the Tamil talkle picture 'Pasamalar' and that they have not so far granted the Video rights to of the picture to anybody. The letter contains no particulars and it is very vague. The 1st defendant, who is the producer, is entitled to assign the rights. The plaintiff has lawfully acquired the limited copyright and the 2nd defendant has no manner of right to claim the copyright in the said picture. The plaintiff filed this suit for protection of the rights given under Section 55 of the Copyright Act for a declaration of the right as per the agreement dated 6-1-1988 and also for an injunction restraining the defendants from interfering with the plaintiff's copyright in the Tamil talkie picture 'Pasamalar'. 3. The main averments found in the written statement are as follows : (a) The 1st defendant could not have offered any of the rights to the plaintiff inasmuch as the 1st defendant themselves were not the owners of the said rights as on date of the alleged agreement dated 6-1-1988. 3. The main averments found in the written statement are as follows : (a) The 1st defendant could not have offered any of the rights to the plaintiff inasmuch as the 1st defendant themselves were not the owners of the said rights as on date of the alleged agreement dated 6-1-1988. One Mohamed Azam and others acquired the entire absolute and perpetual world Negative Rights of the Tamil talkie picture titled 'Pasamalar' and the right to dub or re-mark the picture in all languages except the rights for Hindu language and the rights to produce the picture straight, based on the said story in all other versions and dimensions except in Hindi and of the exploitation thereof an also exploiting the Tamil version in North India subject to the transactions effected by the producer M/s. Rajamani Pictures under the agreement dated 21-7-1961. The 2nd defendant thereafter acquired the sole and exclusive right of exhibition, exploitation and distribution of Tamil talkie (Block and White) Picture 'Pasamalar' for the entire world subject to distribution or lease agreement already in force and as set out in Schedule 'A' of the said agreement for a consideration of Rs. 1,00,000/- from Mohamed Azam representing himself and such tenants-in-common under the agreement dated 22-4-1966 for a period 15 years. Mohammed Azam and others have notified A.V.M. Laboratory Service, where the negative were preserved, that the 2nd defendant is the owner of the negative. They also transferred the negative in favour of the 2nd defendants. Subsequently, on 22-5-1966 M/s. Mohamad Azam and Company and the tenants-in-common entered into a agreement with the 2nd defendant by which Mohammed Azam and Company has assigned the said right in favour of the 2nd defendant perpetually. By virtue of the said agreement, the 2nd defendant become the sole an absolute owner of the Copyright and also owner of the negatives of the said picture 'Pasamalar' which are lying in the A.V.M. Laboratory. The 2nd defendant has been enjoying the copyright of the said picture such as making the copies of the film, exhibiting the film and also commercialising the film by broadcast such as telecasting and also the video rights of the said picture. The 2nd defendant has got the picture recensored on 20-5-1971 and 22-7-1981 and obtained necessary censor certificates. The 2nd defendant has been enjoying the copyright of the said picture such as making the copies of the film, exhibiting the film and also commercialising the film by broadcast such as telecasting and also the video rights of the said picture. The 2nd defendant has got the picture recensored on 20-5-1971 and 22-7-1981 and obtained necessary censor certificates. The 2nd defendant also commercialised the film by telecasting the songs and also the picture through television without any hindrance whatsoever. The 2nd defendant has also published in the Tamil Daily 'Dina Thanthi' issue dated 7-1-1984 and 17-6-1985 that they are the owners of the negative rights and video rights of the picture 'Pasamalar'. The plaintiff has relied upon the agreement dated 6-1-1988 and on the date of the sold agreement, the 1st defendant had no right over the said picture 'Pasamalar' since the rights were assigned in favour of M/s. Mohamed Azam and Company. As the plaintiff has no right over the said picture consequently the suit has to be dismissed. 4. The following issues were framed on 24-12-1992 : (1) Whether the plaintiff is entitled to declaration and injunction as prayed for ? (2) Whether the plaintiff has acquired video and television right in respect of the Tamil Picture titled as 'Pasamalar' ? (3) To what relief ? Issue Nos. 1 and 2 5. M/s. Rajamani Pictures, a partnership firm constituted by (1) K. Mohan, and (2) M. R. Santhanam carrying on film production business at No. 5, Shanmuga Mudali Street, Royapettah, Madras-14 produced a Tamil Talkie Picture titled 'Pasamalar' on 1-7-1961. They assigned the perpetual ownership of the World Negative Rights of the picture 'Pasamalar' to one M/s. Azam & Company, Madras-24. The firm M/s. Azam & Company was dissolved on 30-9-1964. Subsequently the said Mohamed Azam and other tenants in common leased out 'the sole and exclusive rights of distribution, exhibition and exploitation of the picture 'Pasamalar' in Tamil for the entire areas of the world" to the 2nd defendant M/s. Sembi Traders and hereby the 2nd defendant alleged to have got exclusive rights over the said picture. The original right was given for 15 years and it was contended that subsequently a perpetual right was granted in favour of the 2nd defendant, there is no document to substantiate the same. The original right was given for 15 years and it was contended that subsequently a perpetual right was granted in favour of the 2nd defendant, there is no document to substantiate the same. On the contrary there is only a letter dated 22-5-1966 written by the 2nd defendant to M/s. Azam & Company, Madras seeking the perpetual right from 21-4-1981. The 2nd defendant has relied on Exs. D. 3 and D. 5 issued by the Central Board of Film Censors on 20-5-1971 and 22-7-1981 respectively. In those two certificates the 2nd defendants film shown as the applicant and the producer is shown as Rajamani Pictures, Madras. It is a printed form and even then the fact remains that the 2nd defendant had applied of the censor's certificate and obtained the same. It was argued on the side of the plaintiff that the 2nd defendant was shown only as the applicant and the producer was shown as Rajamani Pictures, Madras. Since M/s. Rajamani Pictures, Madras have produced the film, there cannot be any change in the nature of the producer though subsequently one or more persons may acquire the right over the film. However, the fact remains that the producers represented by the 1st defendant as owners have assigned their rights to M/s. Azam & Company from whom the 2nd defendant has obtained the lease hold rights. The 2nd defendant has marked Ex. D. 4 the Certificate issued by the Doordarshan Kendra fro telecasting the said picture on 25-9-1997 at 7.00 p.m. Ex. D. 8 is the covering letter sent to the 2nd defendant for having telecasted the film in Doordarshan. Ex. D. 6 is the agreement entered into between the 2nd defendant and M/s. Mini Film Distributors regarding the said film for it's distribution, exhibition and commercial exploitation in Sri Lanka. Ex. D. 7 is the Certificate issued by A.V.M. Laboratories which would show that the 2nd defendant is the Negative Right Holder. Basing reliance on these documents, the 2nd defendant claimed right over the picture 'Pasamalar' and issued a notice Ex. D. 9 to the plaintiff which had given the cause of action to the plaintiff to file the subject suit. 6. As a rule of law, the plaintiff should stand or fall the merits of their case. However, in the instant case, the notice issued by the 2nd defendant has made the plaintiff to file the suit. D. 9 to the plaintiff which had given the cause of action to the plaintiff to file the subject suit. 6. As a rule of law, the plaintiff should stand or fall the merits of their case. However, in the instant case, the notice issued by the 2nd defendant has made the plaintiff to file the suit. The case of the 2nd defendant has been stated at the beginning on the ground of better appreciation and on the ground of shifting the burden on the 2nd defendant. 7. The case of the plaintiff is that they obtained right over the film from the 1st defendant by way of an agreement Ex. P. 1, dated 6-1-1988. The lease hold agreement shows that the plaintiff have acquired the "Indian Territory Video Rights for exploitation, exhibition, distribution, printing, transferring master cassettes, lending manufacture cassettes, etc. for the picture titled 'PASAMALAR' Block & White, Tamil" and "T.V. Rights in Sri Lanka". The plaintiff have contended that on the basis of the said agreement Ex. P. 1 they have been dealing with the film 'Pasamalar' in India and the limited T.V. Rights in Sri Lanka. The 2nd defendant have contended thereafter assigning to sole the exclusive rights of distribution, exhibition and exploitation of the picture 'Pasamalar' in Tamil for the entire areas of the world, the 1st defendant producer has no right to lease out the said right in favour of the plaintiff and therefore, the claim made by the plaintiff on the basis of Ex. P. 1 is not maintainable. 8. Ex. D. 1 was executed by Mohamed Azam in Favour of the 2nd defendant on the basis of the agreement dated 21-7-1961 executed by the producer of the film and M/s. Rajamani pictures in which the 1st defendant was one of the partners and an assignor in the said agreement. The 1st defendant has not denied the said assignment made in favour of M/s. Azam and Company. The 1st defendant remained ex parte in the suit which means that he has no objection of the prayer made by the plaintiff in the suit. This should be the natural presumption as well as the legal result. Since the defendant remained ex parte, the suit has to be decreed as prayed for by the plaintiff in respect of the 1st defendant. This should be the natural presumption as well as the legal result. Since the defendant remained ex parte, the suit has to be decreed as prayed for by the plaintiff in respect of the 1st defendant. Therefore, the 1st defendant has admitted the assignment in favour of M/s. Azam and Company from whom the 2nd defendant have derived the rights over the film and also the assignment made in favour of the plaintiff on Ex. P. 1 dated 6-1-1988. Therefore, the 1st defendant, who represents M/s. Rajamani Pictures, the producer of the film has admitted both the assignments. 9. The suit has been filed under Section 55 of the Copyright Act, 1957 claiming civil remedy for the infringement of copyright. In a cinematograph film the author is the producer. This has been clearly defined in Section 2(d)(v) of the Copyright Act, 1957. Section 2(f) defines 'Cinematograph film.' As per Section 13(1) of the Copyright Act, 1957, 'copyright' subsists in cinematograph film. In order to constitute infringement of copy right two elements must be present. First, thereof must be sufficient objective similarity between the infringed work and copyright work. Secondly, the copyright work must be the source from which the infringing work is derived, but, it need not be the direct source. However, in the present suit, were are not very much concerned with the infringement of the copyright of the producer of the firm. Earlier, on 21-7-1961 the producers have assigned and granted the entire absolute and perpetual World Negative Rights of the picture and the rights to dub or re-make the same in the language except the right for Hindi version and of the exploitation thereof and also exploiting Tamil version in North India subject to all the transportations effected by the Assignors already as per agreement entered into by them and specified in the schedule. Even in the original agreement the right to dub or re-make the film in Hindi language has not been given tot he assignees which means the assignor have kept certain rights with them. Two vies can be taken by going through the earlier agreement but both parties have failed to make the same as an exhibit on their sides, for the reasons best known to them. 10. Two vies can be taken by going through the earlier agreement but both parties have failed to make the same as an exhibit on their sides, for the reasons best known to them. 10. One of the arguments which can be made herein is that the original assignors viz., the producers, have not kept the video rights with them and therefore, it presumed that the said right was not reserved by the producers. The obvious reason is that in the year 1961 neither the assignors nor the assignees could have dreamt of telecasting or video rights for exploitation or exhibition or distribution or printing transferring master cassettes, etc. However, the conclusion which can be arrived at is that when the producers themselves were not aware of their future rights accrued due to scientific advancements, it cannot be said they had already transferred the rights not in scientific by way of assignments. The assignments cannot be made on rights not in existence and therefore it can be safely decided that the video rights of the film were not given to the assignees M/s. Azam and Company and the assignee in turn an assignors could not have assigned the video rights to the 2nd defendant herein. 11. Further the present sub-section (d) of Section 14 says : (d) in the case of a cinematograph film : (i) to made a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public. Section 2(d)(v) defines - "In relation to a cinematograph film or sound-recording, the producer." Section 14(d) read with the definition 2(d)(v) shows that the author or the cinematograph film is the producer, who has all the rights over the film, if the said rights are not transferred legally. In Raj Video Vision, Registered, partnership Firm rep. by its Partners v. M/s. Sun T.V. ((1994) 2 Mad. LR 158.), while dealing with the distribution, exhibition and exploitation of the film on satellite, it was held that the satelite right was not contemplated at the time of agreement cannot be claimed by the applicant now. In Raj Video Vision, Registered, partnership Firm rep. by its Partners v. M/s. Sun T.V. ((1994) 2 Mad. LR 158.), while dealing with the distribution, exhibition and exploitation of the film on satellite, it was held that the satelite right was not contemplated at the time of agreement cannot be claimed by the applicant now. The said view taken by the learned Judge of this court has to be affirmed in the present wherein the question regarding video rights was canvassed. 12. The term Video Cassette Recorder is not defined in Copyright Act, 1957. Under Section 2(6) of the Time Nadu Exhibition of Films on T.V. Screen through Video Cassette Recorders (Regulation) Act, 1984, and "Video Cassette Recorder" is defined as meaning a cinematograph for the purpose of giving cinematograph exhibition of film recorded on Video Cassette Tape. This Court in the earlier decisions in : (1) Entertaining Enterprises v. State (AIR 1984 Mad. 78.), (2) Tulsidas v. Vasanthakumari ( (1991) 1 LW 220 .). (3) Cine India v. Muthu Enterprises ( (1992) 1 LW 74 .), confirmed that Video films are deemed to be work produced by a process analogous to cinematograph. We have to accept the view taken in those decisions to the extent that video films are deemed to be work produced by a process analogous in cinematograph and it should not be stretched further to convey any other meaning. In Ratna Movie v. Muthu Enterprises ( (1991) 2 LW 581 .), at page 586 this court held : "It is well established principle of case laws that both the video the television are cinematograph and that both jointly and severally become the apparatus for representation of movie pictures or series of pictures and that the video, is an appliance capable of use for the reception of signs, signals, images and sounds. When a Video Cassette Recorder is used for paying pre-recorded cassettes, of movies on the television screen, it is certainly used as an apparatus for the representation of moving pictures or series of pictures and comes within the] definition of cinematograph a defined under the Cinematograph Act." The above decision has to be affirmed for the proposition that other video and television are cinematgraph. However, while the main question arises in the instant case is as to whether the authors who are the producers herein, have got a right to assign the video rights to the plaintiff after assigning the entire Negative Rights to M/s Azam and Company from whom the defendants have derived their rights on the film 'Pasamalar.' 13. Section 14(1)(d)(ii) gives a right to the producer to sell or give on hire, or offer fore sale or hire, any copy of the film regardless of whether such copy has been sold or given in hire on earlier occasions. This section clothes ample power on the producer to sell or give on hire any copy of the film even in has been sold or given on hire on earlier occasion. However, that the subsequent sale or the right to give hire is based on the lawful right conferred on the producer. The later decision of this Court in Raj Video, Registered Partnership Firm Rep. by is Partners v. M/s. Sun T.V. (supra) while considering the satelite right which was not contemplated in the year 1986, it was held "what was not contemplated at the time of agreement cannot be claimed by the applicant now." While considering this view taken by the learned Judge which is more appropriate to the present case and if that view is taken for consideration in the instant case, in the year 1961 when the Negative Right was given M/s. Azam and Company neither party could have dreamt of the later scientific advancements of video, satelite, etc. could not have assigned or granted those rights. 14. A mere reading of Ex. D. 1 and other documents marked on the side of the defendants, would go to show that all the rights in the negative has been given to the assignees by the assignors and the defendants have derived their rights from the earlier assignees. As already stated any right given under assignment should be specified and definite. As per the provisions of this Act though the rights were assigned earlier, the D.5 clearly show the name of the producer as Rajamani Pictures, Madras and the 2nd defendant are shown as the applicants. So, as per Section 14(1)(d)(ii) of the Copyright Act, the producer as the original owner, and the said right on the date of assignment in favour of the plaintiff. So, as per Section 14(1)(d)(ii) of the Copyright Act, the producer as the original owner, and the said right on the date of assignment in favour of the plaintiff. The 2nd defendant cannot claim a right which was not contemplated at the time of original assignment in the year 1961. 15. In these circumstances for the above reasons the plaintiff has acquired video and T.V. rights in respect of Tamil talkie picture titled 'Pasamalar' and the prayer of the plaintiff for declaration and injunction has to be granted. Accordingly, issue Nos. 1 and 2 are decided in favour of the plaintiff. 16. Issue No. 3 : The suit decreed as prayed for with costs. Order accordingly.