M/s Gemini T.V. (P) Ltd. v. State of A.P.

I have heard Sri C.Prathap Reddy, learned counsel appearing for the respondent No.2/A3 and the learned Additional Public Prosecutor appearing for the State.

There is no representation for the revision petitioner for several adjournments, therefore, I am inclined to decide the criminal revision case on merits.

This criminal revision case arises out of the order dated

13.08.2004 passed by the V Metropolitan Magistrate, Hyderabad in Crl.M.P.No.5604 of 2003 in C.C.No.992 of 2003 discharging the respondent under Section 227 of Cr.P.C. for the offence under Section 63 read with 69 of the Copy Right Act, 1957.

The revision petitioner/M/s Gemini T.V. (P) Limited is the complainant before the learned Magistrate and filed the case against the respondent No.3 and two others alleging commission of offence punishable under Section 63 read with 69 of the Copy Right Act, 1957. It was alleged in the complaint that the revision petitioner is the copy right holder of the Telugu feature film “Devullu” which was produced by M/s Babu Pictures, represented by the respondent/A3 which is Managing Partner/negative right holder, who assigned all the rights in the said feature film to the respondent under agreement dated 02.08.2000 for consideration of Rs.12,00,000/-. Thereafter, it is said that the accused with dishonest intention to have wrongful gain and to cause loss to the revision petitioner started selling VCDs of the Telugu feature film “Devullu”. Therefore, according to the revision petitioner, the respondent No.2/A3 and other accused are liable for punishment under Section 63 read with 69 of the Copy Right Act, 1957. The said case was numbered as C.C.No.992 of 2003 on the file of the V Metropolitan Magistrate, Hyderabad.

In the said case, respondent No.3/M/s Babu Pictures represented by Ch.V.Harirama Jogaiah, the third accused, respondent No.2 herein filed petition under Section 227 Cr.P.C. seeking discharge for the offence under Section 63 read with 69 of the Copy Right Act. The contention of the respondent before the learned Magistrate was that the assignment is not valid and no offence punishable under Section 63 read with 69 of the Copy Right Act, 1957 is made out and there being no prima facie case against the respondent No.2/A3, the respondent No.2/A3 shall be discharged for the said offence.

The learned Magistrate after making an enquiry into the petition accepted the contention raised by the respondent No.2/A3 and accordingly discharged the respondent No.2 for the offence alleged under Section 63 read with 69 of the Copy Right Act, 1957.

Feeling aggrieved, the complainant filed the present revision case.

Now the point for determination in this revision case is whether there are any valid grounds to set aside the order passed by the learned Magistrate.

The main contention urged by the respondent No.2/A3 before the learned Magistrate was that as per Section 19(3) of the Copy Right Act, the assignment of copy right in any work shall be for specific consideration and in the absence of any consideration for the assignment of copy right, the assignment is not valid in the eye of law.

It was further contended that as per Section 19(4) of the Copy Right Act if the assignee does not exercise the right assigned to him under the agreement within a period of one year from the date of assignment, all the rights of the assignee shall be deemed to have lapsed after the expiry of said period unless otherwise specified in the assignment.

Here, it is necessary to extract the relevant provisions before appreciating the order passed by the learned Magistrate. Section 19(3) of the Copy Right Act, 1957 reads as under: ‘(3)The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.’ Section 19(4) of the Copyright Act, 1957 read as under: ‘(4) Where the assignee does not exercise the right assigned to him under any of the other sub-sections, of this section within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.’

Condition No.4 of the agreement relates to the period of assignment as well as the consideration for the agreement. The consideration column was kept blank. Therefore, as rightly contended by the respondent No.2/A3 it cannot be said that the assignment is for any consideration. If the assignment of copyright is not for consideration and without specifying the amount of royalty paid, it is contrary to Section 19(3) of the Act and therefore, the agreement is not valid. Further, the assignment of copy right as per condition No.4 of the agreement is for a period of 99 years.

Under the Copy Right Act, 1957, a copyright over the cinematography of film is for a period of sixty years. In the present case, as per the contract between the parties, the period of copyright is 99 years and the same being contrary to the provisions of the Act, is not enforceable. As rightly held by the learned Magistrate that the very condition mentioning the contract period as 99 years is offending the provisions of the Act and therefore, it is not enforceable.

As per Condition No.4, the contract is for a period of 99 years from the date of telecast of the film. Therefore, as rightly held by the learned Magistrate, the assignee is entitled to claim rights only after the expiry of two years from the date of release of the film. The agreement in the case is dated 02.08.2000. It may be either prior to the release of the film or later. The clause in the agreement stipulates that the assignee has copyright to release the film by exercising assignment only after two years from the first theatrical release. If that is so, the revision petitioner has to exercise his copyright over the film only after two years of the first theatrical release. There is no mention in the complaint as to whether the respondent No.2/A3 gave the right of VCD over the film within two years of the first theatrical release or after the expiry of two years. According to Section 19(4) of the Act if the assignee fails to exercise his right within a period of one year from the date of assignment, his right in respect of the assignment is deemed to have lapsed. In the instant case, it is not specifically mentioned in the complaint as to whether the revision petitioner exercised his right within a period of one year from the date of assignment. Obviously as it could be seen from the agreement and the averments of the complaint, the exercise of right is beyond the period of one year and therefore, the revision petitioner’s rights, if any, have been lapsed.

In view of the above, the assignment is not valid, because it is not in accordance with the provisions of Section 19(3) and (4) of the Copy Right Act, 1957. Therefore, the revision petitioner failed to make out the prima facie case of commission of offence by the respondent No.2/A3 punishable under Section 63 read with 69 of the Copy Right Act, 1957. The learned Magistrate, therefore, rightly discharged the respondent No.2/A3 for the offence under Section 63 read with 69 of the Copyright Act, 1957 by exercising jurisdiction under Section 227 Cr.P.C. The order passed by the learned Magistrate does not call for any interference in this revision case.

The criminal revision case is therefore, dismissed confirming the order dated 13.08.2004 passed by the V Metropolitan Magistrate, Hyderabad in Crl.M.P.No.5604 of 2003 in C.C.No.992 of 2003. Date: 15.09.2011 R. KANTHA RAO, J __________________ Kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Revision Case No.1593 OF 2004 DATE: 15.09.2011