Full Judgment Text
FAO(OS) NOS. 221, 223-24,229-36,
239, 241-249, 270-77, 286-93/2006 Page 1
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) NOS. 221, 223-24, 229-36, 239, 241-249, 270-77, 286-93/2006
th
May, 2007.
% Date of Decision : 15
TIME WARNER ENTERTAINMENT
COMPANY, L.P. & OTHERS .... Appellants in FAO(OS) 221, 223-
24, 229-236,239, 270-77, 286-93/2006.
COLUMBIA PICTURES INDUSTRIES
INC. & OTHERS ... Appellants in FAO(OS) 241-49/2006.
Through Ms. C.M. Lall with Mr.Ashish Prasad,
Advocates.
VERSUS
RPG NETCOM .... Respondent in FAO(OS) 221/2006.
GLOBE & ORS .... Respondent in FAO(OS) 223, 241-49/2006.
WIN CABLE 7 DATACOM PVT.LTD ... Respondent in FAO(OS) 224/2006.
SUDHIR SHIVRA JADAV ....Respondent in FAO(OS) 229-36/2006.
SUMESH CHADHA & ORS . ...Respondent in FAO(OS) 270-77/2006.
INDUSIND MEDIA & COMMUNICATIONS LTD.
.....Respondent in FAO(OS) 239/2006.
HOME CABLE NETWORK PVT. LTD & ORS.
.....Respondent in FAO(OS) 286-93/2006.
Through Ms. Pratibha M. Singh with Ms.Shruti Kakar
for respondents in FAO(OS) 221, 241-49/2006.
Mr.Sanjeev Sachdeva with Mr.Sumesh Dhawan and
Mr.Chetan Chopra for respondent in FAO(OS) 224, 270-
77/06.
Mr. Rajeev Kapoor for respondent no.1 in FAO(OS)
270-77/06.
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CORAM:
HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA, CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in the Digest ?
SANJIV KHANNA, J.
1. These appeals involve a common question of law and arise out
th
January, 2006 passed in eight
of a common impugned Order dated 30
different suits. As the facts and issues involved in these Appeals are
similar, they are being disposed of by this common Order.
2. The appellants herein are plaintiffs who have filed eight suits
seeking permanent injunction against the defendant in each suit. Each
defendant is providing cable television services through their associate or
affiliated companies, agents, franchises or distributors.
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3. The appellants-plaintiffs in the plaint have alleged violation of the
provisions of the Copyright Act, 1957 (hereinafter referred to as the Act,
for short) by the defendant/ respondent. It is alleged that the appellants-
plaintiffs are the owners of copyright in respect of the cinematographic
films either as film producers or as assignees and their right as owners of
copyright in cinematographic films is being violated by the respondent-
defendant who should be stayed from broadcasting the said films on their
cable network. Some instances of the alleged violations have been
mentioned in the plaint.
th
4. Learned Single Judge by the impugned Order dated 30
January, 2006 after referring to a Division Bench judgment of this Court in
Mirabai Films Pvt. Ltd. versus Siti Cable Network and others reported
in 2003 (26) PTC 473 (Del) DB has passed an interim order restraining
the respondent-defendant from telecasting/screening/ exhibiting the said
cinematographic films on their network and/or from allowing feed signals
to be used by the distributors, franchises, assignees and cable operators
for the purpose. However, it has been clarified by the learned Single
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Judge that the said interim order would operate only for the films, the list
of which has been enclosed with the plaint. Learned Single Judge
specifically rejected the prayer of the appellants-plaintiffs that interim
injunction order should also be passed in respect of cinematographic
films which have not yet been produced and will be made in future.
Learned Single Judge referred to Section 18 of the Act and held that
copyright in a cinematographic film comes into existence only after the
film has been produced and cause of action for any violation in respect of
the said cinematographic film would arise only thereafter.
5. We have heard the learned counsel for the appellants and the
respondent and will refer to their contentions during the course of this
Order.
6. The object of copyright law is to prevent copying of physical
material and form in the field of literature and art. It is essentially a
negative right given to the author, in the sense that the Act does not
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confer the owner with a right to publish his work but the right to prevent
third parties from doing that which the owner is solely allowed to do under
1
of the Act in
the Act. The term “author” has been defined in Section 2(d)
relation to a cinematographic film to mean 'owner of the film at the time of
its completion'. For determining the “author” in relation to a
cinematographic film we have to find out the time when the film was
completed and the person who was the owner of the film at the time of its
completion. “Owner” of the film when it is under production or before its
completion is not regarded as the author of a cinematographic film within
the meaning of Section 2(d) of the Act. Copyright exists in the material
object but not in the idea. The object of copyright is not to create any
legal or intellectual property rights in the idea but in the final object or the
work which is created as a result of th e effort made to give a “physical”
2
as defined in
shape to an idea. Copyright exists in the “work”
1. Section 2( d ) “author” means,-
( i ) in relation to a literary or dramatic work, the author of the work;
( ii ) in relation to a musical work, the composer ;
( iii ) in relation to an artistic work other than a photograph, the artist;
( iv ) in relation to a photograph, the person taking the photograph;
[( v ) in relation to a cinematograph film or sound-recording, the producer; and
( vi ) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work
to be created;]
Section 2. Interpretation
2
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Section 2(y) of the Act and includes a cinematographic film.
7. Section 13 of the Act provides that subject to the provisions
of the said Section and other provisions of the Act, copyright shall
subsist throughout India in the classes of works specified in the
3
. A reading of Section 13
includes “cinematographic film”
Section which
( y ) “work” means any of the following works, namely,-
( i ) a literary, dramatic, musical or artistic work;
( ii ) a cinematograph film;
( iii ) a [sound recording];
3 Section 13. Works in which copyright subsists .- (1) Subject to the provisions of this section and the other
provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-
( a ) original, literary, dramatic, musical and artistic works;
( b ) cinematograph films; and
( c ) [sound recordings].
(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of
Section 40 or Section 41 apply, unless,-
( i ) in the case of a published work, the work is first published in India, or where the work is first published outside
India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the
time of his death, a citizen of India;
( ii ) in the case of an unpublished work other than a 2 [work of architecture], the author is at the date of making of
the work a citizen of India or domiciled in India; and
( iii ) in the case of a [work of architecture], the work is located in India.
Explanation . In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-
section shall be satisfied by all the authors of the work.
(3) Copyright shall not subsist
( a ) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other
work;
( b ) in any [sound recording] made in respect of a literary, dramatic or musical work, if in making the [sound
recording], copyright in such work has been infringed.
(4) The copyright in a cinematograph film or a [sound recording] shall not affect the separate copyright in any work
in respect of which or a substantial part of which, the film, or as the case may be, the [sound recording] is made.
(5) In the case of a work of architecture, copyright shall subsist only in the artistic character and design and shall
not extend to processes or methods of construction.
FAO(OS) NOS. 221, 223-24,229-36,
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thus makes it clear that a statutory right has been created in respect of
properties mentioned in Section 13, including, cinematographic films.
Section 13 of the Act stipulates that right to claim copyright is subject to
the provisions of the said Section and the other provisions of the Act and
does not exist de hors and outside the Act. It is the right created under
the statute and no right outside the said Act can be claimed. This
becomes clear when we examine Sections 14, 16 and 55 of the Act.
4
of the Act states that copyright means exclusive right by
Section 14
4 Section 14. 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 depiction in three dimensions of a two-dimensional work or 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 film;
( 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 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
FAO(OS) NOS. 221, 223-24,229-36,
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5
of the Act
virtue of and subject to the provisions of the Act. Section 16
further stipulates that no person shall be entitled to copyright or any other
similar right in any work whether published or unpublished otherwise than
under and in accordance with the Act or any other law for the time being
in force i.e. when the said Act was enacted, but it shall not affect or
abrogate any right based on breach of trust or confidence.
6
of the Act provides for civil remedies in cases of
8. Section 55
infringement of copyright. The said provision empowers and authorises
owner of a copyright to remedies by way of injunction/damages or
on hire on earlier occasions;
( 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;
( ii ) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been
sold or given on hire on earlier occasions;
( 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.]
5 Section 16. No copyright except as provided in this Act .- No person shall be entitled to copyright or any similar right in
any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any
other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to
restrain a breach of trust or confidence.
6 Section 55. Civil remedies for infringement of copyright .-(1) Where copyright in any work has been infringed, the owner
of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages,
accounts and otherwise as are or may be conferred by law for the infringement of a right :
Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for
believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect
of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as
the court may in the circumstances deem reasonable.
(2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher,
as the case may be, appears on copies of the work as published, or, in the case of an artistic work, appeared on the work when it
was made, the person whose name so appears or appeared shall, in any proceeding in respect of infringement of copyright in
such work, be presumed, unless the contrary is provided, to be the author or the publisher of the work, as the case may be.
(3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the court.
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otherwise as may be conferred, on infringement of a right under the Act in
respect of any work.
9. In view of the above provisions, it is not possible to accept the
contention of the appellants-plaintiffs that they are entitled to injunction
under the law of tort. The Act itself stipulates and specifically
confers statutory rights in respect of copyright and also provides for
remedies where there is infringement of the statutory right. Section 16 of
the Act specifically bars a person from claiming copyright or any other
similar right in any work otherwise than in accordance
with the provisions of the Act itself or any other law in force. Copyright
exists and can be claimed only in accordance with the
provisions of the Act or under any law which was in force at the time
when the Act was enacted. The appellant-plaintiffs cannot claim copyright
and sue for infringement of copyright de-hors the Act. Common law
rights under copyright law were abrogated earlier by Section
31 of the Copyright Act,1911, which was enacted to amend and
consolidate the law relating to copyright. Section 31 of the Copyright
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Act,1911 read as under :
“ Section 31 . Abrogation of common law
rights. -No person shall be entitled to copyright or
any similar right in any literary, dramatic, musical,
or artistic work, whether published or unpublished,
otherwise than under and in accordance with the
provisions of this Act, or of any other statutory
enactment for the time being in force, but nothing
in this section shall be construed as abrogating any
right or jurisdiction to restrain a breach of trust or
confidence.”
10. The aforesaid provision, therefore, had the effect of abrogating all
common law rights as they existed. A person, therefore, was entitled to
copyright only under the provisions of the said Act and any other statutory
enactment in force when the Copyright Act, 1911 was enacted. Section
16 of the Act has to be read in the light of Section 31 of the Copyright Act,
1911.
7
of the Act states that “author” of a work shall be the
11. Section 17
7 Section 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 a 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 work in any
newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all
other respects the author shall be the first owner of the copyright in the work;
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first owner of the copyright therein subject to the proviso. Section 17 read
with Section 2(d)(v) of the Act makes it clear that the owner of the film at
the time of it's completion is the author of the work and is thus regarded
as the first owner of the copyright. As law of copyright does not protect
ideas but only the material expression of the idea, i.e. the work, it is not
difficult to appreciate why the legislature in defining the term “author“ in
relation to cinematographic films has specifically stipulated that the owner
of the film at the time of it's completion will mean the author of the film.
Ownership rights do not subsist and exist in any person before the film is
completed. “Prospective owner” of a cinematographic film while it is
under production before completion cannot be regarded as an author or
first owner of the film under the Act.
8
of the Act relates to assignment of copyright in an
12. Section 18
( 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;
( c ) in the case of a work made in the course of the authorIs employment under a contract of service or apprenticeship, to
which clause ( a ) or clause ( b ) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first
owner of the copyright therein;
[( cc ) in the case of any address or speech delivered in public, the person who has delivered such address or speech or if such
person has delivered such address or speech on behalf of any other person, such other person shall be the first owner of the
copyright therein notwithstanding that the person who delivers such address or speech, or, as the case may be, the person on
whose behalf such address or speech is delivered, is employed by any other person who arranges such address or speech or on
whose behalf or premises such address or speech is delivered;]
( d ) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner
of the copyright therein;
8 Section 18. Assignment of copyright .-(1) The owner of the copyright in an existing work or the prospective owner of the
copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to
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existing work. Assignment can be done by the owner of the copyright in
an existing work. Section 18 permits assignment by a prospective owner,
i.e. a person who is not the first owner as defined in Section 17, in a
future work. However, as per the proviso, parties can enter into an
agreement for assignment of copyright in any future work, but the
assignment itself takes place only after “the work” comes into existence
and not before. Section 18 therefore gives right to a person, who is not
owner of copyright within the meaning of the Act to assign his rights in
any future work which will come into existence in future by a contract of
assignment. Though an agreement for assignment of a future work is
permitted by Section 18 of the Act but the same is subject to the condition
that the assignment itself will take effect and come into operation only
after the work has come into existence. Before the work comes into
existence the assignment does not have any affect. This is necessarily a
corollary and flows from the object and purpose of law of copyright which
limitations and either for the whole term of the copyright or any part thereof :
Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work
comes into existence.
(2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the
rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the
owner of copyright and the provisions of this Act shall have effect accordingly.
(3) In this section, the expression 'assignee' as respects the assignment of the copyright in any future work includes the legal
representatives of the assignee, if the assignee dies before the work comes into existence.
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is to protect the final expression and not an idea.
9
of the Act incorporates a similar provision and states
13. Section 30
that owner of a copyright of an existing work or a prospective owner of a
copyright in a future works can grant interest by way of licence in writing
but a licence granting copyright in a future work shall take effect only
when the work comes into existence and not before.
14. Reading of the above provisions of the Act and keeping in mind
the object and purpose behind the Act, it cannot be said that any right to
claim infringement in a future work exists in any person before a
cinematographic film is completed. It is only upon completion of the film
that the producer/author of the film becomes the first owner within the
meaning of Section 17 read with Section 2(d)(v) of the Act. As stated
before, a prospective owner can enter into an agreement to assign rights
in a “film” to a third person but the said rights are effective only after the
film is completed and not before. Likewise, right to claim infringement on
9 Section 30. Licences by owners of copyright .-The owner of the copyright in any existing work or the prospective owner of
the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised
agent :
Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work
comes into existence.
Explanation .- When a person to whom a licence relating to copyright in any future work is granted under this section dies before
the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, be
entitled to the benefit of the licence.
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the basis of copyright under Section 55 of the Act has been given to an
“owner” as defined in Section 17 of the Act and not to a “prospective
owner”. In view of the above it cannot be said that “films” which have not
been conceived or after being conceived are under production can
become subject matter of an infringement action relating to
cinematographic films under Section 55 of the Act. Existing owners of
cinematographic films cannot under the Act get omnibus interim
injunction order for cinematographic films of which they may become
owners in future. The Act itself does not postulate and give any such
right to the appellants-plaintiffs.
15. In Hodgkinson and Corby Ltd and another versus Wards
Mobility Services Ltd. reported in (1994) W.L.R. 1564, the Chancery
Division examined the question of law of tort for infringement of copyright.
It was observed as under:-
“I turn to consider the law and begin by
identifying what is not the law. There is no tort of
copying. There is no tort of taking a man's market
or customers. Neither the market nor the customers
are the plaintiff's to own. There is no tort of making
use of another's goodwill as such. There is no tort
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of competition. I say this because at times the
plaintiffs seemed close to relying on such torts. Fort
instance, Mr. Morcom reminded me of the old
adage, “Anything worth copying is worth
protecting.”
16. In the said case, the question whether there exists any
general law of tort of unfair competition in England was also examined. It
was held that general law of tort of unfair competition as such does not
exist in England. We are not concerned with the said question in the
present case. The said question and issue does not find any reference in
the plaints filed by the appellant herein. It may be stated here that in the
case of Hodgkinson (supra) the Chancery Division, however, accepted
that action for passing off which is an action under the law of Tort, is
maintainable.
17. Classically the following three requirements should be alleged and
established by a plaintiff in an action for passing off based on law of
Tort:-
(i) Reputation and/or goodwill,
(ii) Misrepresentation by the defendant causing deception or confusion,
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and
(iii) Resultant damages suffered.
18. Action of passing off is maintainable if the action of the
defendant is calculated to injure business reputation and goodwill of
another trader. This action is also maintainable if damage to reputation
and goodwill is seen as a reasonable foreseeable consequence of the
action of the defendant. Passing off action can be in the form of quia
timet action. Foundation of passing off action is protection of goodwill and
reputation. It is not a remedy for invasion of the market name or get up. It
is a remedy for invasion of right to property in form of business reputation
and goodwill. Goodwill and business reputation is a proprietary right
capable of protection. Secondly, deception or deceit on the part of the
defendant is an essential ingredient for inviting action of passing off. The
objective of passing off action is to restrain a party from passing off his
goods etc. as those belonging to another trader, viz. the one who has the
reputation or goodwill. The property which is sought to be protected is the
business reputation and goodwill that is injured by the said
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misrepresentation. Action for passing off can be initiated, where interest
of an author or owner of a copyright work in his business reputation and
goodwill is damaged by misrepresentation that falls outside the copyright
law, i.e. the Act. Passing off action will be maintainable, when the claim is
not based on infringement of copyright but damage to reputation and
goodwill of the proprietor and the said damage is caused by deceit or
misrepresentation by the defendant. In Copinger and Skone James on
Copyright, on passing off claims by authors and owners, it has been
observed that legal recourse to tort of passing off can be initiated when
no substantial reproduction of work has taken place or when reference is
only made to names or the work of the author/owner as there is no
copyright as such in a name or work.
19. In the present case, we need not go into this aspect in detail as
in the plaint itself, the appellants have not pleaded and have not made
out a case for passing off against the respondent-defendant. The three
essential ingredients required to make out a case for passing off have not
been set out. Without the said foundation in the plaint the appellants-
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plaintiffs in the present Appeal cannot be permitted and allowed to raise
the said issue. To claim injunction on the basis of passing off under law of
Tort, necessary pleading in the plaint is incumbent. The appellant cannot
be permitted to raise this question of passing off in his oral arguments,
though the plaint is silent and the contention was not raised before the
Single Judge. We are therefore not examining and going into the
question whether injunction in respect of a cinematographic film that may
be produced in future can be granted in a suit based on action of passing
off under law of tort. This question/ issue is not adjudicated and decided.
10
of the Specific Relief Act, 1963 stipulates that a
20. Section 38
perpetual injunction may be granted to a plaintiff to prevent breach of an
obligation existing in his favour whether expressly or by implication. This
is, however, subject to other provisions contained in Chapter II of the
Specific Relief Act. Sub-section 3 of the Section 38 of the Specific Relief
10 Section 38. Perpetual injunctions when granted .-(1) Subject to the other provisions contained in or referred to by this
Chapter a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether
expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property the court may grant a
perpetual injunction in the following cases, namely:-
( a ) where the defendant is trustee of the property for the plaintiff;
( b ) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
( c ) where the invasion is such that compensation in money would not afford adequate relief;
( d ) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
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Act states that the plaintiff has right to claim injunction when the
defendant invades or threatens to invade the plaintiff's right to, or
enjoyment of property. Pollock and Mulla in its commentary on Specific
th
Edition) after referring to several decisions has observed
Relief Act (12
as under:-
“If a plaintiff applies for an injunction in
respect of a violation of a right, and the existence of
that right or the fact of its violation is denied, he
must establish his right at law
11
. The court cannot
grant an injunction before a right is acquired, even
where it must be acquired within a short period, viz
a right of easement.
“Mere interference with a legal right does
not by itself entitle a plaintiff to an injunction
12
, nor
does mere inconvenience
13
. There must be violation
of an enforceable right
14
, and the violation must be
of a substantial character.”
21. Even otherwise to grant injunction in respect of a prospective or
future cinematographic films which are not in existence is fraught with
difficulties and can lead to complication and litigation. A vague order of
injunction, which is uncertain in its application and likely to cause
11 Maxwell versus Hogg (1867) 2 Ch.App.307
12 Robson versus Whittingham (1866) 1 Ch.app.442
13 Dyke versus Taylor (1861) 3 De GH&J 467
14 Day versus Brownrigg (1878) 10 Ch.D 294
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confusion should not be passed. It will be impossible for the Courts to
ensure implementation and compliance of an order which will apply to
properties and rights which do not presently exist with the appellants. In
this regard, the respondent no.1 had drawn our attention to Lindley on
“ Entertainment, Publishing and the Arts ” (IInd Edition), Volume 2. It has
been stated in the said edition that most of the cinematographic films are
package operations with an independent producer assembling the
package and submitting it to a Hollywood studio for financing and
distribution. Often financing, fully or partly, is obtained from different
sources and thereafter specific rights are assigned, inter se, the
producer and the studios/entertainment companies. There is also a
possibility of change in ownership when a cinematographic film is under
production but the first ownership will vest with the owner of the
cinematographic film at the time of its completion.
22. Learned counsel for the appellants had drawn our attention to
judgment of a Court of Appeal, Eleventh Circuit, USA in Pacific &
Southern Company versus Duncan . In the said case, the respondent
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was in the business of selling video taped television programmes which
had been earlier been broadcast by different television stations. An
infringement action was brought by one of the television stations. For
various reasons, the first Court refused to grant injunction. The Court of
Appeal gave various findings partly allowing the appeal and also
remanding the matter. The Court of Appeal, however, held that this was a
classic case in which past infringement and substantive likelihood of
future infringement would entitle the copyright holder to permanent
injunction in view of the provisions of applicable enactment. It may be
noted here that in the said case the defendant therein was admittedly
engaged in the business of post broadcast marketing of news items that
had been broadcast by various television channels. This was the
business of the defendant, who claimed every right to sell taped
television programmes which shall be broadcast in future also. The Court
of Appeal noticed that the statute in question itself did not impose
requirement that the work should be in existence to claim injunction for it
empowers courts to issue injunctions on terms which may be deemed
FAO(OS) NOS. 221, 223-24,229-36,
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reasonable to prevent or restrain infringement of copyright. Law of
copyright in India in relation to cinematographic films has been examined
above. We have not examined law of copyright relating to broadcast live
or otherwise. These aspects are not required to be examined in this case.
The said decision, therefore, is not applicable to the facts of the present
case. Pacific & Southern Company case (supra) relates to
broadcasting rights, which may not be similar to rights relating to
cinematographic films. We may also refer to the decision in the case of
Columbia Picture industries versus Robinson reported in [1987] Ch.
38, wherein the court refused to grant an injunction extending to copyright
in future films because it was often difficult to identify the owner
or exclusive licensee of film copyright and it would therefore be
impossible for the defendant to know what films were covered.
23. In view of the above, we do not find any merit in the present
Appeals and the same are accordingly dismissed.
No costs.
(SANJIV KHANNA)
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JUDGE
(DR. MUKUNDAKAM SHARMA)
CHIEF JUSTICE
MAY 15, 2007.
P
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