Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 359 (KER)

Saina Video Vision v. Century Films

2024-03-18

P.SOMARAJAN

body2024
JUDGMENT : P. SOMARAJAN, J. 1. The dispute is pertaining to the ownership of copy right pertaining to cinematographs (32 Malayalam movies). It is the subject matter of an assignment under Ext.A1 dated 17/04/1996 in favour of the second defendant by the owner/producer of the movies, the first defendant/first counter petitioner, from whom the plaintiff/petitioner had obtained internet and internet related rights under Ext.A2 assignment deed dated 11/11/2006. While so, the original producer, the first defendant had assigned internet and internet related rights to the third defendant and they began to use the said right over the 32 movies scheduled in the plaint. Hence, the plaintiff approached the civil court for declaration of their right over the 32 cinematographs (Malayalam movies) and obtained an ad interim injunction against the defendants. The third defendant in turn contested the interim injunction application claiming that they have purchased internet and internet related rights from the original owner/producer, the first defendant subsequently. Initially, an ex parte ad interim injunction was granted. But on appearance of the defendant and after hearing both the parties, the interim injunction was vacated and the application was dismissed by the trial court. It is against that order, the plaintiff/petitioner came up in appeal. 2. The trial court dismissed the injunction application mainly relying on the decision rendered by the High Court of Madras in Raj Video Vision vs. K. Mohanakannan, 1998 KHC 2341. The claim of third defendant, who is litigating under the original owner of the movies (the producer) based on a subsequent assignment of internet and allied rights claims that the internet facility being a subsequent scientific invention, it was not contemplated at the time when Ext.A2 assignment was given and as such, the parties would stand governed by Section 14 of the Copyright Act and Ext.A2 document, the assignment given will not take away the internet and internet related rights over the movies and it will stand vested with the original producer being the original owner of copyright. Thus, the subsequent purchase/assignment in favour of the third defendant is valid, it was contended. Hence, the question came up for consideration is whether Ext.A2 assignment would cover all the copyright held by the original owner of the copyright and what would be the legal position as to any right, which was not contemplated or in existence at the time when the assignment was given. 3. Hence, the question came up for consideration is whether Ext.A2 assignment would cover all the copyright held by the original owner of the copyright and what would be the legal position as to any right, which was not contemplated or in existence at the time when the assignment was given. 3. Section 14 of the Copyright Act is extracted below for reference: “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: (i) to reproduce the work in any material form including: (A) the storing of it in any medium by electronic or other means. (B) depiction in three-dimensions of a two-dimensional work. (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 flil. (v) to make any adaptation of the work. (B) depiction in three-dimensions of a two-dimensional work. (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 flil. (v) to make any adaptation of the work. (vi) to do in relation to an 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. (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 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 [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.” 4. Section 14 in fact defines the meaning of “copyright” as the exclusive right subject to the provisions of the said Act, to do or authorise the doing of any of the acts narrated in clause (a) to (e) in respect of work or any substantial part thereof. Clause (d) deals with cinematograph film, by which, the copyright can be given or exclusive right of copy can be given. The section does not say anything about a right which was not contemplated at the time of assignment/transfer, but stipulates and explains what actually meant by “copyright” and stands for exclusive right which is capable of transfer/assignment. Hence, Section 14 is not exhaustive of deciding the fate of a right, which was not contemplated or in existence at the time when an assignment/transfer was effected and may not give much assistance in deciding the question involved in the present case. 5. Hence, Section 14 is not exhaustive of deciding the fate of a right, which was not contemplated or in existence at the time when an assignment/transfer was effected and may not give much assistance in deciding the question involved in the present case. 5. The further provisions in the Act i.e. Section 17 is dealing with “first owner of copyright” in relation to assignment, transfer etc. The “first owner of copyright” is defined under that Section, more specifically, proviso (a) and (b) to Section 17 of the Act, which are extracted below for reference: “17. First owner of copyright: Subject to the provisions of this Act, the author of a Work shall be the first owner of the copyright therein: Provided that: (a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the word in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purposes of its being so published, but in all other respects the author shall be the first owner of the copyright in the work. (b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.” (Emphasis supplied) 6. The expression “cinematograph” is conspicuously absent either in the main section - Section 17 or its proviso, clause (a). It is incorporated in the proviso, clause (b). Clause (a) deals with who shall be the first owner of the copyright pertaining to literary, dramatic and artistic work made by the author either in a periodical, magazine, newspaper etc. and in the absence of an agreement to contrary, the first owner of the copy right will be the author of the work - literary, dramatic or artistic work. Clause (a) deals with who shall be the first owner of the copyright pertaining to literary, dramatic and artistic work made by the author either in a periodical, magazine, newspaper etc. and in the absence of an agreement to contrary, the first owner of the copy right will be the author of the work - literary, dramatic or artistic work. The word “cinematograph” is conspicuously absent in clause (a) presumably on the reason that there cannot be any specific “author' of a cinematograph and it will be product of several intellectuals/ persons. The rights pertaining to cinematograph is dealt under clause (b), wherein the “first owner of copyright” in the absence of an agreement to the contrary, will be the purchaser or assignor of the right for valuable consideration. A different treatment was given to a cinematograph along with portrait, painting, photograph and engraving. The purchaser or the assignee for valuable consideration will be the first owner of copyright in the absence of an agreement to the contrary. On the other hand, Section 14 defines the expression “copy right.” Necessarily, clause (d)(ii) to Section 14 may not give any assistance so as to ascertain a right, which was not contemplated or not in existence at the time when a transfer or assignment was effected. The user of the expression “subject to the provisions of the Act” in Section 14 would make it clear that the provision will stand subject to the applications of other provisions in the Act. Hence, the same will stand subject to the application of Section 17 of the Act dealing with “first owner of copyright.” Section 17 is incorporated in Chapter IV under the head “OWNERSHIP OF COPY RIGHT AND RIGHT OF OWNER.” It is the provision dealing with ownership of copyright and right of owner and it says that the person or the persons, who obtained the right for valuable consideration shall be the first owner of copyright in the absence of any agreement to the contrary. What governs the area or the determining factor is the existence of a contrary agreement and in the absence of such contrary agreement, the parties would stand governed by Section 17 of the Act. No such contrary agreement or clause was incorporated in Ext.A1. What governs the area or the determining factor is the existence of a contrary agreement and in the absence of such contrary agreement, the parties would stand governed by Section 17 of the Act. No such contrary agreement or clause was incorporated in Ext.A1. It is true that pertaining to a right, which was not contemplated or in existence at the time when the assignment was given, there cannot be any contrary agreement by specifying such rights. But when the contract contains clauses, which would sufficiently convey and assign the entire copyright in terms of Section 17, a right which was not contemplated at that time would stand deemed to have been incorporated or contemplated under the transfer/assignment, unless a contrary intention is evident reserving any right with the producer or the property owner as the case may be. When there is a complete transfer/assignment, a right, which was not contemplated at the time of transfer/assignment would stand transferred or assigned especially in view of the mandate under Section 17 of the Act. When all the rights of a cinematograph were assigned by the producer without reserving and without leaving out any right and if it is complete for valuable consideration in the absence of a contract to contrary, all rights which were in existence at the time of execution of assignment including the rights which may flow out from the subject - cinematograph, the assignee will be the the first owner of copyright going by Section 17 of the Act. The very same principle is applied under the provisions of Transfer of Property Act while dealing with sale of immovable property and entitlement of buyer and seller under Section 55 of the said Act, wherein it is made clear that the seller is entitled to rent and profits of the property till the ownership thereof passes to the buyer and the buyer is entitled to the benefit of any improvement in or increase in value of, the property, the rent and profits thereof, where, the ownership of the property has passed to him. Hence the very principle is not alien to the field of transfer of properties either movable or immovable, tangible or intangible. Hence the very principle is not alien to the field of transfer of properties either movable or immovable, tangible or intangible. Once the entire copyright was given and assigned, the owner of the property cannot claim any right attached to it though it was not contemplated at the time of transfer/assignment and such right would stand within the wide scope of profit/benefit derived from the property so assigned. Necessarily, the owner of the property, who assigned the right cannot claim any right, which was subsequently accrued to the property in question. 7. The legal status of “first owner of copyright” was not altered even by the subsequent amendment. Going by Section 18 of the Act, it is clear that there is no prohibition to assign copyright either wholly or partially and either generally or subject to limitation and either for the whole term of copyright or any part thereof. The only prohibition regarding assignment of copyright is with respect to royalties to be shared with the assignee for the utilization of such work other than the right of exhibition of cinematograph in a cinema hall or through electronic media. The second proviso to Section 18 was incorporated by way of amendment Act 27 of 2012 dated 7.6.2012 with effect from 21.06.2012. It has no retrospective application. It is also contended that the internet facility was available as a mode of exploitation/medium at the time of assignment and as such there cannot be any application of second proviso to Section 18 to the case in hand. The impact of Section 17 of the Act was not taken into consideration or discussed by the High Court of Madras in Raj Video Vision's case (supra). The assignment effected earlier in point of time may not stand covered by the amended provision, the second proviso attached to Section 18. The trial court went wrong in appreciating the legal position in its correct perspective based on the factual scenario involved in the case. The subsequent document in favour of the third respondent hence cannot be accepted and it will not get any legal sanctity. The trial court ought to have made the interim injunction absolute instead of dismissing the application. Hence, the impugned order will stand set aside. The interim injunction granted will stand absolute till the disposal of the suit. The subsequent document in favour of the third respondent hence cannot be accepted and it will not get any legal sanctity. The trial court ought to have made the interim injunction absolute instead of dismissing the application. Hence, the impugned order will stand set aside. The interim injunction granted will stand absolute till the disposal of the suit. The trial court shall expedite the disposal of the suit within a period of six months from today. 8. The appeal will stand allowed accordingly.