TMI Blog2008 (9) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... us. D. We also hold that even if we assume that Section 61 of the Act were to apply, the dismissal of the suit was not justified in view of the independent copyright owned by the appellant in the eventual telecast comprising of vital inputs by the appellant. Appeal is allowed. - RFA (OS) No. 25/2008 - - - Dated:- 26-9-2008 - Mukul Mudgal And V. K. Shali,JJ. For the Appellant : Mr. C. A. Sundaram, Senior Advocate with Mr. N. Ganpathy, Advocate. For the Respondents : Mr. Soli Sorabjee, Senior Advocate with Mr. Anup Bhambhani and Ms. Nisha Bhambhani, Advocates JUDGMENT Mukul Mudgal, J. 1. This Regular First Appeal arises out of the judgment dated 18 February 2008 delivered by a learned Single Judge of this Court, where in the first part deals with interlocutory relief and second part deals with the non-maintainability of the suit. The learned Single Judge had dismissed the entire suit of the appellant/plaintiff for non-compliance of Section 61 of the Copyright Act, 1957 (hereinafter referred to as the Act ). 2. After the arguments were heard in this appeal, both the parties including News Broadcasters Association, agreed to attempt to arrive at a broad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bulletins and/or current affairs programmes. The respondents had indulged in using/appropriating without authority, substantial portions of the footage of the appellant's channel namely Star Cricket which had telecast the test matches exclusively from December 26, 2007 to January 28, 2008 for creating programmes which they were commercially exploiting. (d) The appellant thereafter filed a suit for permanent injunction seeking orders restraining the respondents from utilizing their transmission and/or using the footage for any television programme except for the usage of regularly scheduled news bulletins provided such usage would not be for more than two minutes per day. 4. The pleas of the respondents were as under: (a) The suit was not maintainable on the ground that in every action claiming infringement, the owner of copyright should necessarily be made a party to the proceedings in terms of Section 61(1) of the Copyright Act, 1957 and that since C.A had not been made a party to the suit, the suit ought to be dismissed as not maintainable. (b) In every action claiming infringement, the owner of copyright should necessarily be made a party to the proceedings. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply with equal vigor to all nature of rights that are subject matter of the Act. 41. The third reason why the plaintiff's argument is unacceptable is that though Section 39- A refers to a few sections, and applies them with suitable modifications, yet, there is express reference to copyright in Section 39; similarly, there is reference to application of what is meant by fair dealing under Section 52, over and above what is enacted under Section 39, in relation to copyright. It is not as if the plaintiff says that Cricket Australia does not have copyright in the content of the broadcast; what is argued is that such owner is not necessary party to these proceedings. Section 39-A proviso also negatives the plea, because it clearly refers to the copyright of a performer or owner of copyright, where reproduction of a broadcast is involved. 42. For these reasons, it has to be held that the mandate of Section 61(1) applies in case of claims for infringement of broadcast reproduction rights; the non-impleadment of the owner of copyright is fatal to the maintainability of the suit. Similarly, the non-joinder of owner of the copyright renders the suit liable to be rejected. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending that the impugned judgment and order dated 18th February 2008 be set aside, raised his arguments on a three fold basis. (i) Broadcasting reproduction rights visa-a-vis Copyright in the Indian Copyright Act, 1957. (ii) The ownership of Cinematographic Copyright in the Cricket Matches telecast in the present case. (iii) Defence of fair dealing. 9. While submitting the first of his three fold argument, the learned senior counsel for the appellant raised the following contentions: (A) Status of Broadcasters before the 1994 amendment of the Copyright Act and after the amendment. (a) Before the 1994 amendment of the Copyright Act, the only broadcaster in India was Doordarshan (DD) which used to telecast free to air channels that could be captured by an antenna installed on rooftops and was connected to the television sets by a wire. With the opening of the Indian markets in 1991, several players involved in broadcasting came into India. (b) The process of relay of Programs by way of cables is a complex relay of feeds. The feed is first uplinked from the venue of the event (for a live event) or a studio which can be located anywhere in the world. The feed is then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Broadcasting Reproduction Right' which is a related right and is different from copyright. (B) Copyright versus Broadcast Reproduction Rights' under the Copyright Act 1957 - Applicability of section 61. (a) From the reading of Section 37 of the Copyright Act as well as the Statement of Object and Reasons, it is evident that the definition of 'copyright' under Section 14 of the Copyright Act did not provide any protection to the broadcasters. The statement of Object and Reasons itself provides that Certain Rights akin to copyright are conferred on the broadcasting authorities in respect of programs broadcast by them. This sufficiently brings out the difference between the two rights in Indian Copyright Act, 1957. The amendment Act of 1994 extended such rights to all Broadcasting Organizations apart from more clearly crystallizing the nature of such rights. (b) The fact that such a distinction exists is demonstrated by Section 51 of the Copyright Act which deals with acts constituting infringement of a copyright, whereas there is a separate section, i.e., Section 37(3) that deals with acts constituting infringement of broadcast reproduction rights. From t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Change of innings show. 4. Post Match show. C. From the above it can be seen that the recording of the final mix as telecast would have given rise to an independent copyright to ESS in such a final recording. This copyright is separate and distinct from the satellite broadcast made of the mix by the ESS which would give rise to a broadcast reproduction right. By the very definition of cinematograph under Section 2(f), the satellite broadcasting per se would not amount to a cinematography, which necessarily requires recording of the same. Therefore, the broadcast through a satellite, of a live coverage of a match would give rise to a broadcast reproduction right but not necessarily a cinematographic right, since the latter would arise only if there is an actual recording of what has been broadcast and not when it has been merely broadcast through satellite without also recording the same. D. This distinction is being brought out only to show that even if it is claimed that what is broadcast also amounts to a copyright in a cinematography, the owner of such cinematography copyright would only be ESS. This is an alternate argument taken since the primary contention of ESS is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object is to get the audience to watch the news channel for such extended coverage rather than to impart news and events, it would ipso facto militate against the concept of fair dealing. Equally to make an entire programme of say half an hour by all the channels revolving around a cricketing incident may not be faulted, but if the visual of the programme is the repeated telecast of what was actually broadcast by ESS, such telecast would certainly amount to commercial exploitation especially when the factum of the programme being aired later in the day is constantly advertised / announced by that news channel and such programme is also liberally interspersed with commercials. This would also amount to a direct competition with ESS since ESS also comes out with sporting news. c. He submitted that while fair dealing cannot be defined but would have to be considered in the facts and circumstances of each case, in the facts and circumstances of the instant case this court could decide what could amount to fair dealing in the case of telecasting the material pertaining to the coverage of a cricket match which is of national interest in the course of a news programme. He further submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng regarding infringement of copyright instituted by an exclusive licensee, the owner of the copyright shall be made a party. This provision has been made to enable the owner of the copyright to dispute the claim of the exclusive licensee. It would be anomalous if the owner of the copyright is bound to comply with Section 61 yet the owner of a species of copyright can maintain his suit without complying with Section 61. e. The counsel for the respondent submitted that the C.A. is a necessary party to the suit and on account of its non-impleadment to the suit, the appellant's rights, including its right to sue and its precise rights as an exclusive licensee cannot be decided except with reference to the rival claims and rights of the licensor C.A. and C.A. is therefore a necessary party to the suit. f. He further submitted that in reference to the Agreement dated 26th July, 2002 between the appellant and the C.A., it appears ex-facie that the appellant/plaintiff is not the owner of broadcast reproduction right but merely a licensee of C.A.. From a combined reading of the provisions of the said Agreement, including Part 1 of the Schedule thereto, it is clear that the host ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cifically excludes from the ambit of infringement the use of excerpts by a broadcaster for reporting on current events or for review. Moreover as television journalists it is their fundamental right under Article 19(1)(a) of the Constitution of India to report on all important current events and happenings and disseminate information. Cricket is an extremely popular and sought after sport in India, and accordingly dissemination of cricket news is of great importance to the viewers who also have the fundamental right to receive the information. l. The use of footage for this purpose was therefore the respondents' right under the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. The footage was used for bona fide reporting, which is clearly in public interest. Breach of the mandate of fair dealing in Section 39(b) of the said Act is eminently capable of being compensated in damages, and as per the settled position of law, an injunction cannot be granted on mere allegations of apprehended violation of fair dealing, where such violation can in any case be fully compensated in damages. m. The learned counsel for the respondent rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971). (emphasis supplied) Consequent to the agreement, the Copyright Act, 1957 was amended in 1994 so as to incorporate definitions under Sections 2(dd) and 2(ff) and the relevant provisions relating to Broadcasting Reproduction right in Section 37, Section 39 and Section 39 (A) in Chapter VIII. The definition of Broadcast under Section 2 (dd) reads as follows: [2(dd) broadcast means communication to the public - (i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii)by wire, and includes a re-broadcast;] The definition of the Communication to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act reads as follows: Other provisions applying to broadcast reproduction right and performer's right - Sections 18,19,30,53,55,58,64,65 and 66 shall, with any necessary adaptations and modifications, apply in relation to the broadcast reproduction right in any broadcast and the performer's right in any performance as they apply in relation to copyright in a work: Provided that where copyright or performer's right subsists in respect of any work or performance that has been broadcast, on license to reproduce such broadcast shall take effect without the consent of the owner of rights or performer, as the case may be, or both of them. 16. It is to be seen that the genesis of the broadcasting reproduction right lies in the Statement of Objects and Reasons of the original 1957 Act which clearly stated as follows:- (11) Certain rights akin to copyright are conferred on Broadcasting authorities in respect of programmes broadcast by them. Thus, the Legislature itself by terming broadcast rights as those akin to copyright clearly brought out the distinction between the nature of two rights in Indian Copyright Act, 1957. This was a clear manifestation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Copyright Act make it clear that copyright will subsist only in 'work' and that does not include 'broadcast'. This clearly demonstrates that the broadcast rights particularly in respect of telecast of live events are separate and distinct from copyright available in Chapter XII of the Act. The definition of 'broadcast' under Section 2(dd) and the definition of 'communication to the public' under Section 2(ff) of the Act further emphasize the fact that Section 61 is not applicable to the proceeding for infringement of Broadcasting Reproduction Right and that application of Section 61 is limited to the cases where an exclusive licensee of a copyright institutes a suit or proceeding for infringement of copyright. 18. The learned counsel for the respondent Shri Soli Sorabjee has contended that Section 61 of the Act is mandatory. Its effects and operation are neither excluded nor non-limited by any non obstante Clause or by making said Section subject to any other provision of the Act. The non-mention of Section 61 in Section 39-A cannot by implication curtail the operation of Section 61. The significant words in Section 39-A are with any necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision v. M/s Sun TV, 1994 (2) Madras Law Weekly 158 it was held as follows: 12. The copyright for broadcasting or telecasting the film through satellite, cable, wire wireless or through any other system or any other form, means and modes other than through Doordarshan terrestrial Primary Channel without restriction of geographical area is a separate right. Satellite right is new, separate and distinct specie or right hitherto not visualized and this cannot be said to be included under the agreements relied upon by the plaintiff's in any event. In fact cassettes are used for home TV, whereas 'U' tapes are used for Satellite Transmission. 13. On a careful consideration of the arguments advanced by the learned counsel appearing on either side, I am of the view that the Satellite television broadcasting right is an independent right for which the plaintiff cannot claim any copyright. ........ 15. Thus, looked at from any angle, satellite TV broadcasting rights are independent rights and the same have to be assigned specifically and so far as such rights have not been assigned in favour of the applicant/plaintiff specifically, the plaintiffs cannot claim any cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. (emphasis supplied) 21. According to the appellant, an agreement was reached between the C.A. which was hosting the cricket matches and the appellant ESS permitting ESS to receive the live feed from the host broadcaster i.e. Channel 9 and to broadcast such feed after making their additions/alterations etc. Thereafter the ESS utilizes the original feed from C.A. as under:- i. Pre-match covering : ESS covers about one hour of programmes before the start of the match which includes expert analysis about composition of the team, about the likely performances of the key players, conditions such as weather pitch stories with regard to the history of previous matches played on the ground, spectator relations etc. If further includes the pitch report, interviews with manager/coach/players the toss. ii. Live match coverage : When the match starts, the cameras of the host broadcaster along with the independent cameras of the ESS start transmitting the live images of the match. These are received in the OB van of ESS where there is a Director of production, who decides on what is to be transmitted by mixing the same together with the ESS own graphics including details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nings, a distinct telecast as compared to that put out by the host broadcaster takes place. The presence of different expert commentators, many of whom are famed former cricketers, and the other inputs such as the speed gun, wagon wheel, hawkeye and select part of the replays and the slow motion replays, originally not a part of the live feed received from the host broadcaster, clearly demonstrates a substantial difference between the original host broadcaster's live feed, and that broadcast by the appellant after the addition of its own inputs. In our view, thus, it is evident that not only in law are the broadcasting rights differently treated by Section 37, but in fact also, the telecast eventually done by the appellant is distinct from that of the host broadcaster except in the portions where the live action of the match is being telecast. However, even the live ball to ball feed is interspersed with the separate commentary of ESS and the other technical inputs such as hawk-eye and slow motion images etc. This clearly gives rise to an independent copyright in the modified feed whether it be treated and termed as broadcasting reproduction right or copyright. It is to be seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t portions of the match by a channel in a special programme which may adversely affect the commercial viability of the appellant's telecast. It is the broadcasting reproduction right of the broadcaster which is an exclusive right, including an independent copyright and any reproduction of any such work in any form and for excessive durations may amount to infringement of its rights. Excessive usage of the telecast of the appellant in the form of news, in a given case may amount to the infringement of the right of the broadcaster, which has the exclusive monopoly to broadcast the live feed of the match or any reproduction of it or of any programme before the start of the match or after the match is over. It is also noteworthy that if such a right of the broadcaster is not protected then the whole concept of an exclusive broadcaster producing a telecast or live feed of the event would become futile, diluted and uneconomical and thus, the rights of the broadcaster under such circumstances need to be protected. The principal use of the footage of the cricket match in such a format as produced by the respondents prima facie appears to create a visually engaging and commercially prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rajasthan AIR1997 SC 3011 wherein it was held as under: - ...Independence of judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.... . However, in the present case, the Copyright Act of 1957 and the amended Act of 1994 enacted by the Indian Parliament form a complete legislation to deal with matters relating to Broadcast reproduction rights distinctively. The WIPO agreement is only mentioned in the context of the historical perspective, because in our view, what is to be considered while deciphering the Legislative intent is the statute itself and this Court would not be bound by WIPO or such other agreement unless incorporated in the statute by the Indian Parliament or if utilization of such covenant fell within the scope of the law laid down in the case of Vishaka (supra). 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing. Fair dealing is purely a question of fact which cannot be prejudged and of necessity can only be decided on case to case basis. The counsel for the appellant contended that there is no concept of fair dealing in the infringement of a copyright in a cinematographic film and therefore if it is to be held that what is broadcast by ESS amounts to copyright then the defence of fair dealing is not available at all as referred in Section 52B of the Act. Fair dealing is available as a defence in the case of a broadcast reproduction right by virtue of Section 39(b). The learned Single Judge relying on the on the judgment in the case of Habburd Anr. v. Vosper, (1972) 1 All ER 1023l, held that the court finds it difficult to accept that a 30 second limit or a 7 minutes cap for the news channels can apply 'across the board' in all contingencies. The court thus cannot universalize any rule or any standard and cases have to be decided on the peculiar facts. However, in our view the application for interim relief ought not to have been rejected merely by holding that 30 seconds or 7 minutes cap cannot be a universal rule. The Court was, nevertheless, required to go into the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a fair dealing defence may still be available even if one or other of the guidelines had not been strictly observed. However, the preparation and observance of the guidelines were considered to provide a solid foundation for a fair dealing defence for the purposes of reporting current events.......... ............ [76] The rate of repetition of TV3's footage by Sky is in itself an unfair dealing with the material. It will erode to some extent at least, TV3's position as the exclusive broadcaster of the World Cup. The level of access to footage shown by Sky is such that for some viewers it will be enough to satiate, rather than whet their appetite for more coverage................... [114] Having weighed these matters I consider that the balance of convenience favors the grant of an injunction. At this point I take a step back and consider where the overall justice lies. It lies with TV3. At considerable cost it bought the exclusive rights to broadcast Rugby World Cup matches. It has structured its business planning, investment and programming around that acquisition. TV3 has a strong case that Sky's use of its footage is beyond what might reasonably be ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was actually broadcast by the appellant, especially in a form of a special programme, may amount to commercial exploitation not protected by Article 19(1)(a), especially when the factum of the programme being aired later in the day is constantly advertised and announced by the news channel and such programmes are liberally interposed with commercials. In addressing the issue of fairness, it is necessary to look at the totality of the footage of the broadcast of the cricket match as shown by the respondents. The appellant contended that through the number of programmes and the rate of repetition of those programmes, the respondents are achieving an intensive level of broadcasting of the appellant's distinct and exclusive footage in direct competition with the appellant's telecast. It is also evident that such telecast by the news channels are in commercial competition with the appellant's telecast because of the amount and importance of the work which has been utilized. In light of these principles as noted above, we are of the view that the appellant's case, that the use by the respondents of the repeated broadcast of the cricket match in the various footage is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singapore facility to about 26 countries. Plaintiff's production facility comprises 60,000/- square foot state-of- the-are broadcast operations including an array of studios, videotape libraries, graphics facilities, a complete earth station including eight up and down linking parabolic antennas, edit suites and all other equipment and infrastructure necessary for the purposes of production and telecasting of live international sporting events including cricket,. Plaintiff has 35 dedicated, fulltime, award winning professionals, staffing four non-linear, high end, server based edit suites and a critically acclaimed, national sports news gathering operation all over the world including India. Plaintiff retains three dedicated leased satellite lines from London. All live programming feeds originating in the western hemisphere are received in 'Singapore via these dedicated leased lines. The Plaintiff has engaged the services of the world class commentators such as Harsha Bhogle, Ian Chappel, Wasim Akram, Sunil Gavaskar, Ravi Shastri and Alan Wilkins etc. It would be relevant to mention that in the course of a cricket match, the Plaintiff creates the live feed by deploying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d: It is impossible to define what is 'fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. The Test indicated in Ashdown was based on the Textbook rd The Modern Law of Copyright and Designs (3 edn. 2000) by Laddie, Prescott and Vitoria. The court held that: the authors suggest that the success or failure of the defence depends on three factors: (1) whether the alleged fair dealing is in commercial competition with the owner's exploitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The inclusion of specific Sections of the Act in Section 39A and making them applicable to Broadcast Reproduction Right and Performer's Right clearly shows that the broadcast reproduction right is separate and distinct from copyright in a work. Thus, the Special Broadcast Reproduction Right conferred under Section 37 in Chapter VIII of the Act is a distinct and separate right conferred on every broadcasting organization and independent of the right of an owner of a copyright and the omission of Section 61 in Section 39A of the Act makes this position amply clear. The appellant's broadcast reproduction rights may be affected by indiscriminately using a substantial footage of the appellant's broadcast without the appellant's permission and may amount to commercial exploitation of the appellant's footage in the guise of fair comment, while purporting to telecast news bulletins. Thus, in our view the appellant is a broadcasting organization as envisaged in Section 37 of the Act and it was well within its right to seek a legal remedy to ensure that its broadcast was not commercially exploited by any other entity without its prior permission and without acknowledging ..... X X X X Extracts X X X X X X X X Extracts X X X X
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