Whether the films need censorship at all

 Hon’ble Supreme Court on the question whether the films need censorship at all observed and held that pre-censorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the motion picture has had a run; that censorship is prevalent all the world over in some form or other and pre-censorship also plays a part where motion pictures are involved, shows the desirability of censorship in this field; that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its co-ordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three-dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative art. The motion picture is able to stir up emotions more deeply than any other product of art.

Bad Criminals

Mohd. Yasin versus State (NCT of Delhi) & ors.  reported in (2009)14 SCC 644 Hon’ble Supreme Court observed and held that police and/or investigating agencies cannot torture any criminal despite his bad criminal record......

Bad Criminals

Prem Chand (Paniwala) versus Union of India & ors.  reported in (1981)1 SCC 639 Hon’ble Supreme Court observed and held as under:

1. The provisions of the statute ostensibly have benign purposes and in the context of exclamation of crime may be restrictions which in normal times might appear unreasonable may have to be clamped down on individuals.
2. Fundamental rights are fundamental and personal liberty cannot be put at the mercy of the police. 
3. Any police apprehension is not enough. 
4.  Some grounds or other is not adequate. 
5.  There must be clear and present danger based home credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence.
6. There must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in Delhi or in any part thereof is hazardous to the community and its safety. 
7.  The easy possibility of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied. 
8.  Natural justice must be fairly compiled with and vague allegations and secret hearings are gross violation of article 14, 19 and 21 of the Constitution. 
9.  The need of the state to issue clears orders to the police department to free the process of investigation and prosecution from the contamination of concoction through the expediency of stockpiling of stock witnesses. 
10. To police persons who get rich quick by method not easily or licitly understandable is perhaps a social service. 
11. To keep an eye on the activities without close shadowing and surveillance may perhaps lead to criminal discoveries if they are not too influential for the police. 
12. Police to be activists and intelligent enough to track down those who holds the nation's health, wealth, peace and security in jeopardy.................

COPYRIGHT INFRINGMENT BY HOTEL

Hon’ble High Court of Delhi in the case of Super Cassette Industries v. Nirulas Corner House (P) Ltd has held as under:(vide order dated 17.3.2008)

• The copyrights conferred under Section 14 of the Act consist of a bundle of rights. The owner of a copyright is entitled to assign and licence each of those rights separately or in bundles. The bundle of rights could vary in complexity depending upon the nature of the work literary, dramatic, musical recording or cinematographic films. In the case of music videos, which is essentially a cinematographic film, rights could subsist in the following works: lyrics of the song (literary), music composition (musical), choreography and performance (dramatic), the sets (artistic), the capturing of the musical work on tapes (sound recording) and the capturing of it all on a film (cinematographic film). Under section 14, the rights to reproduce, perform, adapt, translate, make copies of these works exists. Each of these rights could be assigned, reassigned and licensed. For example, the owner of the rights in a cinematographic film, can licence the literary and musical rights in the lyrics to a radio channel to be aired, and also assign the license to make copies of the cinematographic films on cassettes and CDs etc to a person and so on. The work thus follows a trail of licences.
• In relation to cable channels the plaintiff would convey the right to broadcast the work to public, they in turn would convey the right to re-broadcast the work to cable operators and what is conveyed to the customer is a license to watch the work. This trail of conveyance of the rights have to be kept in mind.
• The acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constituted a performance of such composition within the meaning of the Copyright Act, and thus violative of the owners rights.
• The expansive definition under Section 2(ff) in this case would mean that broadcast is deemed to be communication to the public.
• Under Section 51, (ii) infringement occurs, if anyone permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright. The exception to this definition of infringement is contained in Section 52.
• In terms of Section 52 (1) (k) the causing of a recording to be heard in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein, is not deemed an infringement. Similarly an exception, involving the communication of a work the public, or of a sound recording, in the course of any bona fide religious ceremony is not a public performance (Section 2(1) (za)). These provisions are pointers to the legislative intent of treating use of televisions and sound recordings, in hotels as communications to the public; the intention appears to be reinforced by specific exception, from Section 52 to the category of what is not infringement, the use of recording to be heard in a hotel.
• While on the subject, it may not be out of place to observe that the two categories hotels and similar commercial establishment gives a clue to Parliamentary intention to exclude the operation of such categories of establishments from the benefit of what are obviously deemed not infringements. Such provisions should receive a restricted interpretation, having regard to the nature of the expressions used. Thus, the Court will not extend the law beyond its meaning to take care of any perceived broader legislative purpose. Here ``strict'` means merely that the Court will refrain from exercising its creative function to apply the rule announced in the statute to situations not covered by it.
• All establishments cannot come within the fold of the expression. There can even be a class of situations where it can conceivably be argued that the service provided is so integrally connected with the communication to the public, that it may not fall within Section 51.
• the court must consider the question of proportions, in the case of a copyright infringement action.
• placing of a common television in a motel reception, accessible to all but without keeping a television set, in each hotel room, or placing such a set in a grocery shop for the recreation of the owner, or a wayside restaurant, may not fall within the mischief of the definition of infringement.
• proportion in this context, would necessarily imply the nature of the activity of the establishment and the integral connection the infringement complained of has with it.
• the use of television or radio in a city bus can be contrasted with such use in an aircraft.
• that the plaint does not disclose any cause of action;
• the court cannot go behind the pleadings to hold that the materials or pleadings do not disclose any triable cause of action.
• That there cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. The court cannot reject a part of the plaint, if defects are noticed in it for any reason
• the defendants are using cable connection and extending facilities of television to their patrons in the hotel rooms, for payments are received.
• prima facie, the content of songs and videos broadcast are communications to the public......

Harry Potter Trade Mark, WARNER BROS

Application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure seeking an interim injunction, inter alia, restraining the defendants from releasing the defendants' film under the trademark/title “HARI PUTTAR”. The application has been filed in a suit for permanent injunction restraining infringement of trademarks, passing off, dilution, damages and rendition of accounts of profits earned by the defendants by use of the impugned trademark/title; and for an order of transfer of the domain name www.haripattarthefilm.com to the plaintiffs.         The plaintiffs, who claim that the movie “HARI PUTTAR” is an infringing variant of the plaintiffs' trademark “HARRY POTTER”, seek stay of the release of the movie principally on the ground that the phonetic and structural similarity between the titles “HARRY POTTER” and “HARI PUTTAR” tantamount to the defendants riding on the popularity of the plaintiffs, thereby infringing the plaintiffs' registered trademark and diluting the goodwill of the plaintiffs.

Hon’ble Court dismissed the application and observed as under:

• clear evidence, is termed as smoking gun evidence, 
• the plaintiffs fairly believed that the project had been shelved and were, in fact, shocked when market intelligence revealed 
•  deliberate suppression of material facts, viewed singularly or coupled with blatantly false assertions, so far as the grant of equitable relief of injunction is concerned, is fatal. 
• attempted to lightly brush off their intentional non-disclosure by feigning oversight 
• a person who seeks the equitable relief of injunction must come to the Court with clean hands. 
• in the instant case, the false assertions of the plaintiffs and the suppression by them of material facts, were quite obviously intended by them to be a cover up for their delay in approaching the Court, which delay, so far as the grant of equitable relief is concerned, is again a material circumstance (though not necessarily a conclusive one). 
•  delay by itself may not necessarily be a ground for refusing injunction, but delay would be relevant in adjudging a change in the subject matter in an action brought about by a situation in which the plaintiff sat on the fence, watching the defendant enrich its trade by investment of money and labour and involving third party rights in the same. 
•  Any suppression or concealment of the material facts cannot, therefore, but be viewed as an attempt to pollute the stream of justice

INJUNCTION AGAINST UN-NAMED AND UNDISCLOSED PERSON

UTV approached Hon’ble High Court of Delhi seeking relief against large scale violation of its copyright in earlier films produced by it by several known and unknown cable operators who telecast pirated version of the films of the plaintiff on cable networks, violating rights of the plaintiff and causing irreparable loss and damage. They invoked the inherent power of the court under Section 151 of the CPC to evolve a fair and reasonable procedure to address the peculiar facts and circumstances over the pleaded violations on the ground that they have not signed any agreement with regard to the film, which amounts to violation of section 14(1)(d) and 16 of the Copyright Act.

          Hon’ble High Court granted interim injunction and observed that the modus operandi adopted by unauthorized cable operators is to prepare poor copies of the films when they are being screened in the picture hall and telecast the same on their network to cable homes attached to them. It would appear that public interest would also suffer on account of poor programme quality. There is prima facie substance in the plaintiffs’ contention that the same would impact the plaintiff’s reputation as well. Prima facie appears that unlicensed broadcast of the reproduction rights vested in the plaintiff by telecasting the plaintiffs’ films in the foregoing manner is illegal, unfair and deserves to be prohibited. Balance of convenience and interest of justice are in favour of the plaintiff and against the defendants…….

PERMANENT INJUNCTION AGAINST CABLE NETWORK

A decree of permanent injunction restraining the Defendant from telecasting or broadcasting on their cable network any cinematograph film, the copyright in which vests in them. They also seek from this Court, a decree directing the Defendant to hand over possession of infringing copies and a decree in their favour for the profits made by the Defendant on the ground that such unauthorized telecasting of their works causes irreparable harm and injury to them. The plaintiffs submit that this trend not merely affects their rights in the existing titles but also affects their future releases. They insist that even one unauthorized telecast is capable of reaching several thousand homes and to that extent they suffer huge losses in relation to release and sale rights.

        Hon’ble High Court the court issued a permanent injunction against the defendant, its servants, agents, distributors, etc, restraining them from doing any act, or transmitting signals or broadcasting, or carrying in its network, any cinematograph film or work mentioned in the Annexure to the suit, without prior license of the plaintiff and has held as under:

•   no denial of the fact that the defendant is a cable television network owner, in terms of Section 2(c) of the Cable Act 
• defendant is in control of closed transmission paths and associated signal generation, and owns control and distribution equipment, designed to provide cable service for reception by multiple subscribers 
•  some of these subscribers happen to be cable operators, who are able to manipulate the system, or indulge in acts of piracy, is no excuse for the defendant, in law 
• primary obligation is to ensure that the closed transmission paths and associated signal generation are carried out in such manner as to not result in violation of others’ rights, in existing laws, such as the Copyright Act 
• Multiplicity of plaintiffs and their common representation in the proceedings are concerned, the provision of Order 1 Rule 1 C.P.C. enables several parties to join as plaintiffs, all persons under the right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions exists 
• In view of the provision, and Section 134(4) of the Trade and Merchandise Marks, 1999, since the plaintiffs have offices in New Delhi, this Court possesses jurisdiction to try the suit 
• that the plaintiffs have established a case for grant of injunction as regards the existing and specified titles 
•  However, as far as future works are concerned, the relief would be based on assumption of future violation by the defendants 
• No evidence is forthcoming that the defendant’s business, or process of carrying on business is such that there is imminent threat of infringement. 
• plaintiff has not established how injunctions for anticipated threats to future properties can be granted.

COPYRIGHT MATERIAL MEANS

In the case of Eastern Book Company & ors. vs. D.B. Modak & Anr. [(2008) 1 SCC 1], Hon'ble Supreme Court has held that the Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, coordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.

CONSIDER STATUTORY PROVISION

Decree for injunction is an equitable relief. The courts while passing a decree for permanent injunction would avoid multiplicity of proceedings. The court while passing such a decree, is obligated to consider the statutory provisions governing the same. For the said purpose, it must be noticed as to what is a copyright and in respect of the matters the same cannot be claimed or otherwise the same is lodged by conditions and subject to statutory limitation.

NO COPYRIGHT IN AN IDEA

In the case of R.G. Anand vs. M/s Deluxe Films & ors. Hon'ble Supreme Court has emerged the following propositions: 

• There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
• Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 
•  One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 
•  Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copy right arises.
• Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 
•  As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case-law discussed above. 
• Where however the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.

COURT MUST

In the case of Hubbard vs- Vosper, reported in 1972 (1) All ER 1072 the court must consider the question of proportions, in the case of a copyright infringement action.

STAY ON CENSOR

Hon’ble High Court of Delhi vide order dated 10.8.2011 has stayed the direction, Judgment and order for manufacturers and/or distributors or sellers of Cinematograph films, which is made by them will before being sold or offered for sale or distributed by them to the public in DVD, VCD or any electronic or other format, be first submitted to the Central Board of Film Certification for certification of the same High Court,  subject to pay a costs of Rs.10,000/- for condoning the delay in filing L.P.A.....

CENSOR MUST

Hon’ble High Court in the case of Super Cassette Industries Ltd. Versus Central Board of Film Certification alongwith 39 cases has observed and held as under:

(a) Once a film is made or produced in a DVD or VCD or any other format and is made available or distributed to the public or offered for sale to the public, it will amount to publication of such film within the meaning of Section 52A(2)(a) of the CR Act.

(b) In the context of the present petitions, at the point where a member of the public, to whom the Petitioners‟ films on DVD or VCD is made available, plays it on an equipment and views such film, whether in the confines of a private space or otherwise, prior certification of that film in terms of Section 5-A CG Act would become necessary, since for the purposes of Section 52A(2) of the CR Act the film is exhibited at that point. (c) The maker or the distributor of a film made available to the public by sale or otherwise is expected to anticipate the exhibition of such film by such member of the public subsequently and to ensure therefore that the film bears a certificate under Section 5-A CG Act. (d) Whether such film, if it contains purely religious or devotional songs, should be exempted from the certification is a matter for the Government of India to take a decision on in exercise of its powers under Section 9 CG Act. However, absent such exemption under Section 9 CG Act, it must be held that the films being produced and manufactured by the Petitioners, even if they contain purely religious or devotional songs as claimed by them, would require prior certification by the CBFC under Section 5-A CG Act. The absence of such certificate in the film itself when it is exhibited will attract the violation of Section 52A(2)(a) CR Act.

Xxx                                         xxx

                 As far as the Petitioners before this Court who are manufacturers and/or distributors or sellers of cinematograph films, each of them will adhere to the law as explained in this judgment and any film which is hereafter made by them will, before being sold or offered for sale or distributed by them to the public in DVD, VCD or any electronic or other format, be first submitted to the CBFC for certification. It is for the CBFC to decide whether it wants to increase its machinery to ensure that such certification takes place expeditiously. It is also meanwhile for the UOI to decide whether a film containing only religious or devotional material would require to be exempted from certification under Section 9 of the CG Act and on what terms. As far as the CBI is concerned it can proceed with the prosecutions already launched in accordance with law. However, in view of the statement by the learned ASG, the present judgment will apply prospectively and will not be used by the CBI to register any fresh cases in respect of the films already produced and offered for sale or distributed to public by any of the Petitioners. The CBI and the law enforcement machinery of the GNCTD will be free to proceed against any of the Petitioners if they act hereafter in contravention of the law..........

NAGOTI

Hon’ble Supreme Court in the case of State of Andhra Pradesh versus Nagoti Venkataramana has observed and held as under:

• a copyright in a work shall be deemed to be infringed when any other person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copies of the work. Section 52-A deals with particulars tube included in sound recordings and video films.
• The permission of the owner for publication is mandatory when it sought to be brought home to the person violating the publication or performed in public. It excludes the application of infringement of copyright from the purview of Section 4 Chapter x deals with registration of copyright.

• Section 68-A provides for penalty for contravention of Section 52-A
• any person who publishes a sound recording or a video film in contravention of the provisions of Section 52-A, shall be punishable with imprisonment which may extend to three years and shall also be liable to fine.
• infringement of a copyright or deemed infringement of copyright or publication of a work without the permission of the owner are offences under the Act
• in the interpretation of penal provisions, strict construction is required to be adopted and if any real doubt arises, necessarily the reasonable benefit of doubt would be extended to the accused.
• piracy which became a global problem due to rapid advances in technology.
• the object of the pirate is to make quick money and avoid payment of legitimate taxes and royalties.
• whether video film is cinematograph?
• video tapes come within the expression "cinematograph" in view of the extended definition in Section 2 [c] which includes apparatus for the representation of moving pictures or series of pictures as copy of the video should be created in respect of a cinematograph under the Cinematograph Act which gives protection to the purchasers of the cinematograph if they are registered under Chapter X of the Act.
• Section 44 gives the right of registration and once the entries have been made by operation of Section 48 the entries in the register of copyrights shall be prima facie evidence of the copyright and the entries therein are conclusive without proof of the copyright and the entries therein are conclusive without proof of the original copyright which must be taken to have been created in respect of the video tape.
• If the particulars on video films etc. as mandated under Section 52-A do not find place, it would be infringement of copyright.....

PUBLIC EXHIBITION

Hon’ble High Court in the case of Balwinder Singh v. Delhi Administration has held that both video and television are cinematograph. Licenses for giving their public exhibition is necessary under the Cinematograph Act in spite of their having commercial licenses for them under the Telegraphs Act.

VIOLATION BY CABLE OPERATORS

Hon’ble High Court in the case filed by UTV issued summons indicating that it is open to the parties to access the facility of negotiating a settlement with the other side before the Delhi High Court Mediation and Conciliation Centre in the court complex with liberty to the mediator to join any other person(s) considered necessary for effective mediation and dispute resolution without prejudice to their rights and contentions in the suit.

Hon’ble High Court observed that unlicensed broadcast of the reproduction rights vested in the plaintiff by telecasting the plaintiffs’ films 7 Khoon Maaf and the forthcoming film Thank You in the foregoing manner is illegal, unfair and deserves to be prohibited, therefore issued as under:-

(i)         that the defendants/their agents, representatives, franchisees, sub-operators, head ends and/or anyone claiming under them are hereby restrained from telecasting or in any other manner communicating to the viewing public/subscribers either by means of wireless diffusion or by wire a pirated version of the films 7 Khoon Maaf and Thank You and/or in any other manner infringing the copyright of the plaintiff therein.

(ii)        It is further directed that till the present order is vacated or modified, the direction shall operate against the defendants, their agents, representatives, franchises, sub-operators or any person claiming under them an injunction.

(iii)       Further injunction in terms of serial no. (i) above is passed against un-named and undisclosed persons who may be likewise committing breach of the rights of the plaintiff in a similar manner.

(iv)     The SHO/Superintendent of the concerned police station(s) are directed to render assistance to the plaintiff should any be required for purposes of enforcement of the present order as it is the obligation of the police authorities and the State to enforce judicial orders passed.

(v)        The plaintiff is permitted to publish the John Doe injunction order issued today in local newspapers in all states where it has expressed apprehensions of violation of its rights. Consequences in accordance with law would thereafter follow.

(vi)       The plaintiff shall comply with the provisions of the proviso to rule 3 of order 39 of the CPC within a period of ten days from today. Copy of this order be given dasti as well as dasti under the signatures of the court master of this court.