Raj Video Vision v. S.A. Rajkannu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27-06-2005CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE N. KANNADASANO.S.A.NOs.228 OF 2000 & 315 OF 2002O.S.A.NO.228 of 2000Raj Video Vision, a registered partnership firm represented byits Partner, M. RaveendranNo.703, Anna Salai,Chennai 600 002. .. Appellant/PlaintiffVs.1. S.A. Rajkannu, Proprietor Sree Amman Creations, 154, Anandan Street, North Usman Road, T. Nagar, Chennai 17.2. Messrs SUN TV, represented by its Director, 268/269, Anna Salai, Chennai 600 018. .. Respondents/ DefendantsO.S.A.NO.315 of 2002Raj Video Vision, a registered partnership firm represented byits Partner, M. RaveendranNo.703, Anna Salai, Chennai 600 002. .. Appellant/ 2nd defendantVs. https://hcservices.ecourts.gov.in/hcservices/

1. SUN TV, Unit of Messrs Sumangali Publications Pvt. Ltd. rep. by its Manager (Programming) 268/269, Anna Salai, Chennai 600 018.2. S.A. Rajkannu, Proprietor Sree Amman Creations, 154, Anandan Street, North Usman Road, T. Nagar, Chennai 17.3. Jain Satellite Television, Office at No.4, Lady Desikachari Road, Madras 600 004... Respondents/Plaintiff & Defendants 1 & 3Appeals filed under Clause 15 of the Letters Patent andOrder XXXVI Rule 1 of the O.S. Rules against the common judgment anddecree dated 15.2.2000 in C.S.No.803 of 1994 and Tr.C.S.No.279 of1998.For Appellant: Mr.R. Krishnasamyin both Appeals Senior Advocate for Mr.C. RameshFor Respondent-2: Mr.N.S. Varadachari for in OSA.228/2000 & Mr.Anil Kumar R-1 in OSA.315/02 Respondent-3: No Appearancein OSA.315/02 - - -COMMON JUDGMENTP.K. MISRA, J Both these appeals are directed against the common decisionof the learned single Judge in C.S.No.803 of 1994 and Tr.C.S.No.279 of1998.2. C.S.No.803 of 1994 was filed by the present appellantagainst the present Respondents 1 & 2 for declaration that theplaintiff is the owner of the limited copyright, video-cum-televisionincluding satellite television, of the Tamil picture ‘Mahanadhi’ forthe entire India for perpetual period and for permanent injunction https://hcservices.ecourts.gov.in/hcservices/ against the defendants from interfering with such right by telecastingthe said picture and for rendering accounts. Such suit was filed on11.7.1994. Defendant No.2 in the aforesaid suit filed an independentsuit in C.S.No.907 of 1994, subsequently transferred and numbered asTr.C.S.No.279 of 1998, for declaration that it is the owner of thecopyright in respect of Satellite Television broadcast relating to thepictures described in the plaint schedule wherein the picture‘Mahanadhi’ was included as S.No.1 and also for permanent injunctionagainst the defendants. In such suit, the present appellant wasimpleaded as Defendant No.2.3. For convenience, the appellant, who is the plaintiff inC.S.No.803 of 1994 and Defendant No.2 in the Tr.C.S.No.279 of 1998, isdescribed as the plaintiff, and the plaintiff in the connected case isdescribed as the contesting defendant, and the Producer of the film‘Mahanadhi’, who is the common Defendant No.1 in both the suits, isdescribed as the Producer. 4. The case of the plaintiff is that there was an agreementdated 31.1.1994 between the plaintiff and the Producer in respect ofTamil picture ‘Mahanadhi’. Under the said agreement, the Producerassigned the Video rights and the rights of performing the exhibitionof the picture in any mode of Visual or acoustic presentation forcommercial and non-commercial exploitation, for a consideration ofRs.1,00,000/- for the entire India. As per the case of the plaintiff,the rights assigned under such agreement included the broadcastingrights by means of a system for reproducing actual or recorded sceneat a distance on a screen by radio transmission with appropriate soundand vision of distance object obtained or by means of latest digitaltechnology or system. The Producer also assigned the right ofexploitation of the said picture to general public in any media ofvisual or acoustic presentation and any cinematograph work produced bysuch process analogous to Cinematography. The right included theexploitation by means of a wire and wireless diffusion forcommunication to the public within the meaning of the Indian CopyrightAct. It is his case that under Section 2(ff) of the Copyright Act,1957 “communication to the public” means communication to the publicin whatever manner, including communication through satellite, and thedefinition of “broadcast” includes television broadcast also. It isfurther asserted that the contesting defendant through itscommunication network had telecasted songs and clippings of thepicture ‘Mahanadhi’ during the month of June, 1994, infringing theplaintiff’s limited copyright, which necessitated filing of C.S.No.803of 1994.5. The Producer, who is the first defendant in both thesuits, filed a written statement wherein he admitted the execution ofthe agreement dated 31.1.1994. However, in such written statement, https://hcservices.ecourts.gov.in/hcservices/ the specific plea was that under the agreement there was assignment ofvideo rights only and no other right was assigned to the plaintiff andother rights remained with the Producer. Subsequently, he hadassigned the broadcasting right through satellite television in favourof the contesting defendant as per agreement dated 13.6.1994. It iscontended that the right to telecast the picture through satellite wasnever assigned to the plaintiff.6. The stand taken by the contesting defendant in the suitfiled by the present appellant and the stand reflected in the suitfiled by such contesting defendant being similar, it is only necessaryto refer to the substance of the allegations made in the writtenstatement of such contesting defendant. It has been contended in suchwritten statement / plaint that the right to telecast throughsatellite had never been given to the plaintiff and it was given tosuch contesting defendant by agreement dated 13.6.1994, and therefore,such contesting defendant alone is entitled to telecast the picturethrough satellite television. It has been further stated that in theagreement between the Producer and the plaintiff there is no mentionof the word “Satellite” and the agreement dated 31.1.1994 in favour ofthe plaintiff only indicated the assignment of video rights over thepicture. Various clauses in the agreement between the Producer andthe plaintiff have been referred to in such written statement tohighlight the above position. As already indicated, the contents inthe written statement and the latter suit filed by the contestingdefendant are similar, it is not necessary to refer to thoseallegations again. 7. Both the suits were taken up together and the followingissues were framed in C.S.No.803 of 1994 :-“i) Whether the plaintiff is entitled to the relief ofdeclaration and injunction as prayed for ?ii) Whether the alleged assignment of Satellite TVrights under the agreement dated 13-6-1994 by the firstdefendant to the second defendant is valid ?iii) Whether the agreement dated 31-1-1994 by thefirst defendant to the plaintiff includes satellite TVrights in favour of the plaintiff ?iv) To what other reliefs are the parties entitled to?8. In the connected suit, namely, Tr.C.S.No.279 of 1998, thefollowing issues were framed :-1. Whether the Plaintiff is the absolute owner ofcopyright of the picture ‘Mahanadhi’ in respect of SatelliteTV broadcast ?2. Whether the Plaintiff is entitled to the reliefs ofdeclaration and permanent injunction as prayed for in thesuit; and https://hcservices.ecourts.gov.in/hcservices/

3. To what relief, if any, the plaintiff is entitled to ?9. While discussing Issue Nos.1 and 3 in C.S.No.803 of 1994,the learned single Judge found that under the agreement dated31.1.1994 the Producer had only assigned video rights to theplaintiff. In other words, the plaintiff had only the rights toexploit the picture through video cassettes and broadcast the samethrough Video Cassette Recorders or Video Cassette Players or even bycable through private television, but he had not acquired any right totelecast the same through any Satellite and the right of the plaintiffhad been confined within the Indian territory. It has been observedby the trial court as follows :“14. ... Therefore, it is strange that the plaintiffhas chosen to contend that the rights obtained by himincludes the right to exploit or telecast the picturethrough satellite television. Admittedly broadcastingthrough satellite television can be done only bytransmitting the picture by uplinking it with satelliteswhich are stationed outside the Indian territory and in thecase of SUN TV the satellite uplinking is done inPhilipines. The plaintiff does not claim that he hasoverseas right in respect of the picture ‘MAHANADHI’. But,the very telecast through satellite television is possibleonly if the picture is taken to Philipines and thenbroadcasted through satellite television. Therefore, whatthe plaintiff has acquired under Ex.A-1 agreement is onlyvideo right and he can only transfer the picture by gettingsound and negatives ad recording them in cassettes andexhibiting or telecasting them through any modes. So, theplaintiff has acquired only the right to transfer thepicture into cassettes and by playing the cassettes thepicture can be exhibited either through Video CassettesRecorder or Video Cassette Player. The agreement does notmention about the right to telecast the picture throughtelevision much less satellite television. There is nopoint in the plaintiff ref2erring us to the meaning orconnotation of copyright found in the Copyright Act, 1957.The entire copyright vests with the first defendant/Producerand he has chosen to enter into agreements in respect oflimited copyright and one such right given to the plaintiffis the right to exploit the picture ‘MAHANADHI’ throughVideo cassettes. Therefore, there is absolutely no meaningin the plaintiff contending that by virtue of Ex.A-1 he hasobtained right to telecast the picture through satellitetelevision.”On the basis of the aforesaid main finding, the suit of the plaintiffwas dismissed and that of the contesting defendant was decreed. https://hcservices.ecourts.gov.in/hcservices/

10. O.S.A.No.228 of 2000 is filed against the dismissal of thesuit C.S.No.803 of 1994 and the other connected appeal is directedagainst the decision in Tr.C.S.No.279 of 1998, which has been filed bythe contesting defendant.11. Two agreements, execution of which has not been denied,form the basis for the entire dispute. It is therefore necessary torefer to the relevant portions of the agreements. First in point oftime obviously was that of the plaintiff. In such agreement, theProducer has been described as the Lessor and the plaintiff has beendescribed as the Lessee. Preamble portion of the agreement is to thefollowing effect :-“ WHEREAS the Lessees have approached the Lessors witha request for acquiring the exclusive rights of exhibition,exploitation and distribution of Indian Vide rights and forbroadcasting rights by means of the system for reproducingactual or recorded scene at a distance on a screen by radiotransmission and commercial and non-commercial exploitationfor entire India and also for performing the exhibition ofthe said picture assigned under these presents in any modeof visual, or acoustic presentation including the exhibitionof the said picture by means of a wireless diffusion and bywire for communication to the public within the meaning ofthe Indian Copyright Act for which the Lessors have agreedto grant to them the lease rights aforesaid.”12. Clauses 1,3,4 and 5 of the agreement being relevant, areextracted hereunder :-“1. The Lessors hereby agree and grant on Lease theIndian Video Lease Rights and the rights of performing theexhibition of the picture in any mode of visual or acousticpresentation for commercial and non-commercial exploitation,exhibition, distribution, preparing manufacturing MasterU-matic Video cassettes, copies thereto, lending thecassettes, for a perpetual period of the picture mentionedbelow referred to as the Leased period in consideration of atotal royalty amount as mentioned below against each filmfor the entire India mentioned hereunder herein afterreferred to as the leased territory :------------------------------------------------------------Name of the Starcast Music by Director Producer/NegativePicture Right Holder--------------------------------------------------------------- MAHANADHI Kamalhassan Illayaraja Santhana S.A. Raj Kannu Sukanya Bharathi--------------------------------------------------------------- https://hcservices.ecourts.gov.in/hcservices/

3. The rights hereby assigned would also include thebroadcasting rights by means of a system for reproducingactual or recorded scene at a distance on a screen by radiotransmission with appropriate sound and vision of distanceobjects obtained or means of Latest Digital Technology orsystems.4. The Lessors hereby assign to the Lessees the rightto perform the exhibition of the said picture for thegeneral public in any media of visual or acousticspresentation, and also any cinematograph work produced byany process analogous to cinematography in future by meansof scientific advancement.5. The Lessors hereby agree and confirm that theexhibition of the picture would also include theexploitation by means of a wire and wireless diffusion forcommunication to the public within the meaning of the IndianCopyright Act.”13. The relevant clauses of the agreement between theProducer and the contesting defendant are quoted hereunder :-“ 2. ‘The Assignment of copyright for the said film/sfor Satellite Television Broadcast’ means, the absoluteassignment to the Assignees or their authorised persons, ofthe copyright for broadcasting the said film/s throughsatellite, cable, wire, wireless or through any other systemor any other forms, means and modes other than throughDoordarshan’s terrestrial primary channel, withoutrestriction of geographical area.4. On the aforesaid representations and declarationsand believing the same to be true the Assignee hereby acceptthe Assignment of the Satellite TV Broadcast of the saidfilms. 7. The Assignees shall have full, complete andunrestricted right to alter, delete, or cut any portion oradd any portion of other film/s or documentaries,advertisements or sound, in the said films either before orafter or intervening including the right to make theVideograms, Discs, Cassettes, Tapes in respect of songs,dialogues, scenes, extracts and/or combinations thereof thesaid films. In short, the Assignees shall have unrestrictedrights to use the said films or videograms, cassettes,discs, tapes for any purpose in any manner whatsoever forSatellite TV Broadcast purpose as specified in Clause No.2.” https://hcservices.ecourts.gov.in/hcservices/

14. Learned counsel appearing for the appellant hassubmitted that the agreement between the Producer and theplaintiff/appellant clearly envisages conferment of right on theappellant to broadcast the picture through Satellite television andthe right is not confined to mere “video rights” as observed by thetrial court. In support of such contention, he has placed relianceupon certain provisions contained in the Copyright Act, 1957.Since both the agreements were executed in January / June 1994, therelevant provisions as contained in the Copyright Act, 1957, beforesuch Act was amended by Act 38 of 1994 with effect from 10-5-1995, arebeing referred to hereafter. As per Section 2(dd) “broadcast” means communication tothe public-(i) by means of wireless diffusion, whether in any oneor more of the forms of signs, sounds or visual images; or(ii) by wire,and includes a re-broadcast;According to Section 2(ff) “communication to thepublic” means communication to the public in whatevermanner, including communication through satellite.As per Section 2(m) “infringing copy” means,-(i) . . .(ii) in relation to a cinematograph film; a copy of the film ora record embodying the recording in any part of the sound trackassociated with the film;(iii) . . .(iv) . . .if such reproduction, copy or record, is made or imported incontravention of the provisions of this Act.15. The trial court has referred to the preamble portion aswell as the first clause of the agreement in favour of the plaintiffto come to a conclusion that only the right to exploit video leaserights had been conferred under such agreement. However, in ouropinion, the trial court has not kept in view the contents of theentire agreement while coming to such a conclusion. Even in thepreamble portion, it has been indicated that the lessee had requestedfor acquiring the exclusive rights of exhibition, exploitation anddistribution of video rights and for broadcasting rights by means ofthe system for reproducing actual or recorded scene at a distance on ascreen by radio transmission and also for performing the exhibition ofthe said picture in any mode of visual or acoustic presentationincluding the exhibition of the said picture by means of a wirelessdiffusion and by wire for communication to the public within themeaning of the Indian Copyright. Even under Clause-1, the lessor had https://hcservices.ecourts.gov.in/hcservices/ granted on lease the Video Rights and the rights of performing theexhibition of the picture in any mode of visual or acousticpresentation for commercial and non-commercial exploitation. If atall there was any doubt about the wide import of the preamble as wellas Clause-1, such doubt was clearly dispelled by specific inclusion ofClause No.3 as well as Clause No.5, particularly in Clause No.5 it wasemphasised that the right included the exploitation by means of wireand wireless diffusion for communication to the public within themeaning of the Indian Copyright Act. Reference to the IndianCopyright in the preamble as well as in Clause-5 makes it clear aboutthe intention of the parties. The relevant provisions of the IndianCopyright Act, which have been already extracted, clearly indicatethat the right conferred on the plaintiff was not confined toexploitation through videos alone, but also exploitation by means ofwireless diffusion for communication to the public.16. As per clause 2(dd) “broadcast” means communication tothe public by means of wireless diffusion and as per Section 2(ff)“communication to the public” means communication to the public inwhatever manner, including communication through satellite. In theface of such clear meaning available under the Copyright Act, 1957 andin view of the clear recital in the agreement, there is hardly anyscope for any dispute on this aspect. The obvious conclusion is thatnot only the right of exhibiting the picture through video had beengiven, but also the right to exhibit the picture through satellite hadbeen given.17. The trial court proceeded on the footing that at thetime when the agreement was executed, exhibiting the picture throughsatellite was not in contemplation and at any rate such picture couldbe shown through satellite only through the help of some satellitetransponder in Philipines and the right of the plaintiff was confinedto Indian territory. In our opinion, the trial court seems to haveignored the effect of the latter recitals in the preamble portion aswell as in clauses 1, 3 and 5 of the agreement. A fair reading of theagreement in whole indicates that distribution of Video rights hadbeen conferred and also the rights in performing the exhibition of thepicture by means of wireless diffusion for communication to the publicwithin the meaning of the Indian Copyright Act had been given, whichclearly envisages the right to show the picture through satellite. Itmay be that at that particular moment the plaintiff did not havearrangement to uplink the picture through satellite. However, theright itself was created in perpetuity and merely because theplaintiff had no necessary infrastructure or arrangement, the samecannot be a ground to take away the clear language in the agreement. 18. In the decision of the Supreme Court reported in 2003(2)CTC 282 (OIL & NATURAL GAS CORPORATION LTD., v. SAW PIPES LTD.), itwas observed as follows :- https://hcservices.ecourts.gov.in/hcservices/ “40. It cannot be disputed that for construction of thecontract, it is settled law that the intention of theparties is to be gathered from the words used in theagreement. If words are unambiguous and are used after fullunderstanding of their meaning by experts, it would bedifficult to gather their intention different from thelanguage used in the agreement. If upon a reading of thedocument as a whole, it can fairly be deduced from the wordsactually used therein that the parties had agreed on aparticular term, there is nothing in law which prevents themfrom setting up that term. (Re: Modi & Co. v. Union ofIndia, 1968(2) SCR 565). Further, in construing a contract,the Court must look at the words used in the contract unlessthey are such that one may suspect that they do not conveythe intention correctly. If the words are clear, there isvery little the Court can do about it. (Re: Provash ChandraDalui and another v. Biswanath Banerjee and another, 1989Supp(1) SCC 487).” 19. Law is well settled that when a contract is reduced towriting, the terms of the contract are to be ascertained from thewords used in the contract unless there is any blatant or patentambiguity. In the present case, we find none. Once this conclusionis reached, it is obvious that execution of the subsequent agreementin favour of the contesting defendant was in violation of the limitedcopyright which had been created in favour of the plaintiff. 20. It appears that the trial court has apparently acceptedthe contention to the effect that there was no scope for conferringthe right of showing the picture through satellite at that stage asthe plaintiff did not have the necessary infrastructure. In ouropinion, such assumption or conclusion cannot be accepted in view ofthe decision of the Supreme Court in (1993) 3 SCC 715 (LAXMI VIDEOTHEATRES AND OTHERS v. STATE OF HARYANA AND OTHERS).21. Learned counsel appearing for the contesting defendanthas submitted that the right was confined only to Indian territory,and therefore, the plaintiff could not have acquired the right toexhibit the picture through satellite which had necessarily linkedwith the foreign territory. As already indicated, the right toexhibit the picture through video cassettes is confined to Indianterritory. However, apart from the said right, the agreement clearlyconferred the right to uplink the picture through satellite.22. For the aforesaid reasons, we are unable to uphold thefindings of the trial court, and therefore, the decision of the trialcourt is liable to be set aside. C.S.No.803 of 1994 is accordinglydecreed and Tr.C.S.No.279 of 1998 filed by the contesting defendant,namely, M/s. Sun TV, so far as it relates to the picture ‘Mahanadhi’ https://hcservices.ecourts.gov.in/hcservices/ (S.No.1 in the plaint schedule), is dismissed. Parties are directedto bear their own costs throughout. It is made clear that dismissalof the suit of the contesting defendant is only with respect to theTamil picture ‘Mahanadhi’. dpkSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Sub Assistant Registrar,Original Side, High Court, Madras.+ 1 cc to Mr.C.Ramesh, Advocate SR No.26235+ 1 cc to Mr.Y.Anil Kumar, Advocate SR No.26304NG(CO)SR/10.11.2005COMMON JUDGMENT IN OSA.Nos.228/2000 & 315/2002