1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2259 OF 2004 Shri Anand Patwardhan ...Plaintiff Vs. The Director General, Directorate General of Doordarshan & Ors. ...Defendants Mr.P.A. Sebastian with Ms. Maharukh Adenwalla for Plaintiff Mr. S.R.Rajguru for Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 31 ST MARCH , 2009 JUDGMENT: 1. The Plaintiff is a documentary film maker. The Plaintiff had made inter alia a documentary film “Waves of Revolution” (the suit film) in 1975. The Defendant No.4 acting on behalf of Defendants 1 to 3 has made a documentary film “26 th June 1975” (the impugned film) in 2003. The suit film is about the Bihar Movement led by Jay Prakash Narayan, a Freedom Fighter and a Revolutionary depicting the students' revolt in Bihar which led to and is stated to have been repressed by the Declaration of Emergency in 1975. The impugned film shows in a diametrically different perspective the persons and their actions before and at the time of the Declaration of Emergency. The suit film was 2 telecast in 1977. The impugned film was telecast on 26th June 2003, the anniversary of the Declaration of Emergency. 2. The Plaintiff claims that the Plaintiff had copyright in the suit film, which was breached and infringed because various extracts contained in these incidents were lifted from the suit film and inserted in the impugned film without the Plaintiff's permission or without any payment or any credit offered to the Plaintiff and without his knowledge. The Plaintiff learnt about the documentary only when it was broadcast on the Television by the Defendants upon being informed that the said film showed parts of the suit film. 3. It is the Plaintiff's case that the impugned film contained substantial footage from the suit film made in 1974- 75 which has been used with a new meaning and entirely different sound track and different view-point and differs radically and fundamentally from the view-point expressed in the suit film. It is the Plaintiff's case that it highlights the role of persons close to the ruling party of India on 26 th June 2003 and underplays or ignores the roles played by those persons during and before the Declaration of Emergency who found no favour with the ruling party of 2003. 4. It is the Plaintiff's case that the Defendants have 3 broadcast on the Television channel of Doordarshan the Plaintiff's film upon the lifting of the Emergency after acquiring the telecast rights for a fee of Rs.500/- . The copy of the film so broadcast remained in the archives of the Defendants. It is also the Plaintiff's case that there is no existing equivalent footage of the Bihar Movement other than what was recorded by the Plaintiff. It is the Plaintiff's case that Defendants 1 to 3 colluded with Defendant No.4 to misappropriate the Plaintiff's copyright in the said film and incorporated parts of that film selectively in the impugned film. 5. The Plaintiff follows a secular democratic ideology. The ideology of the persons shown in the impugned film is the “Hindutva ” ideology. It is also the Plaintiff's case that the impugned film shows essentially the acts of certain persons who follow an ideology completely different from that of the Plaintiff and accordingly the several shots of the suit film of the Plaintiff being shown in that impugned film constitutes an act to defame the Plaintiff. It is his case that his friends and acquaintances who viewed the impugned film believed that the Plaintiff has renounced his ideology and had sold himself. Accordingly the Plaintiff claims that his status was lowered and his public image was tarnished which resulted in public loss of face and mental trauma. 4 6. The Plaintiff claims that the suit film was mutilated which was precisely against his contract with Defendants 1 to 3 for acquiring the telecast rights and which resulted in dishonest misappropriation of the suit film by the resultant conversion by incorporation of parts of the film so misappropriated into another film of a different message thus violating his copyright. The Plaintiff has sued for damages of Rs.31 lakhs upon defamation by infringement of copyright as well as for injunction restraining the Defendants from screening and re- screening and circulating the impugned film carrying the footage from the Plaintiff's film and for an issue and publication of an unconditional apology. 7. The Defendants have denied copyright of the Plaintiff in the suit film or its infringement or the resultant defamation. They deny that the suit film is the Plaintiff's original work and any knowledge of the Plaintiff's copyright therein. The Defendants claim that the Defendant No.4, who was the Producer and Director of the impugned film, took the shots of the film from the Doordarshan Kendra (DDK) archives tape and did not know that it was the Plaintiff's documentary film. The Defendants contend that that tape did not mention about the origin of the archive shots or whether its use would entail a liability. Defendant No.4 claims to be an innocent user of 5 the archive material lying with the DDK. The Defendants have denied that the impugned film contains substantial footage of the suit film. The Defendants also contend that the impugned film relates to a historical event and current events being telecast on the anniversary of the Declaration of Emergency to educate the people in political history with no intention to defame the Plaintiff. Accordingly the Defendants have denied any breach of copyright or defamation arising therefrom and consequently the liability for the reliefs sought. 8. Based upon the respective cases of the parties the following issues have been framed and answered as follows:- ISSUES FINDINGS 1. Whether the suit is barred by the Law of Limitation. No 2. Whether the Plaintiff is the Producer/ Author of the documentary film “Waves of Revolution”. Yes 3. Whether the Plaintiff has copyright in respect of the said documentary film and is entitled to invoke the protection under the Copyright Act. Yes 4. Whether the Defendants have pirated and plagiarised the said film or any part thereof. Yes 6 5. Whether Dooradarshan had acquired the telecast rights of the Plaintiff's film for a fee of Rs.500/- . Yes – per telecast subject to limitations imposed by the Plaintiff as contained in Exhibit- B. 6. Whether the Defendants distorted and mutilated the Plaintiff's documentary film and broadcast the same by breach of trust. Yes 7. Whether the Plaintiff suffered trauma and mental anguish upon deriving knowledge of the telecast of the film “26th June, 1995” and whether it led to defamation. No 8. What relief, if any, that the Plaintiff is entitled to ? As per final order 9. The Plaintiff has examined himself and one other witness to prove the defamation alleged by the Plaintiff. The Plaintiff's examination- in-chief essentially makes out the case in the plaint. The additional affidavit of examination- in-chief of the Plaintiff shows the films made by him telecast on DD and for which he won certain awards. It further sets out his ideology and the consideration he received under the contract with the Defendants for giving them the right to telecast the suit film. The affidavit further sets out how and to what extent his copyright in the suit film has been infringed by 6 extracts from 7 his film intersper sed at various points in the impugned film. It shows that his film was virtually the only authentic documentary footage of the Jay Prakash Narayan movement. It shows how he came to learn about the telecast of the impugned film and how he obtained the copy thereof as proof of telecast. It further shows the claim of damages made by the Plaintiff. His further affidavit of examination- in-chief shows the certificate obtained by the Plaintiff from the Central Board of Film Censor which is marked Exhibit- A in evidence, the contract between the parties shown by the Defendants' letter setting out its terms marked Exhibit- B and the fact of the Plaintiff's telecast reported in a newspaper marked Exhibit- C. The Plaintiff has shown how his copyright was infringed and his anguish at the defamation caused by piracy and mutilation of the film. 10. Aside from these documents, the parties have tendered a CD of the suit film and the impugned film as exhibits E & F respectively. Upon the parties' request the Court has viewed both the films in their entirety as also again viewed parts of the films specifically sought to be shown by the Plaintiff and Defendant No.4 and heard these parties' comments on both the films. Several shots and stills of the suit film which have been incorporated in the impugned film are interalia Jay Prakash Narayan in a boat crossing a river, a shot of student 8 protesters upon a train, Jay Prakash Narayan in a jeep, in a rally, people throwing garlands upon him, Plaintiffs handwriting “Bihar, Movement 1974 ” on a Newspaper. 11. The cross examination of the Plaintiff is essentially on the contents of both the films and the fact that the shots and stills of the suit film incorporated in the impugned film are of a very short length in the entire film by the virtue of the fact that the total length of the copied shots and stills is over a very short duration in the impugned film. The fact that the same frames or images of several shots and stills of the suit film have been taken in the impugned film is not denied. It has been the case of the Defendants that there has been no infringement of copyright. A chunk of the cross examination sets out the description of the entire impugned film to show that it was different from the suit film during a great length of the film. The Plaintiff has also been cross examined upon the contract between the Plaintiff and Defendants 1, 2 and 3 under which it has been the Defendants' case that they were assigned the copyright of the suit film and hence can allow its user as they wished, so that none of the Defendants has infringed the Plaintiff's copyright. 12. The other witness of the Plaintiff one Shashi Mehta who is a social activist has been examined to show that she knew the 9 Plaintiff's ideology and character and that when she saw the impugned film telecast on DD the Plaintiff went down in her esteem. She, therefore, rang up the Plaintiff to confront him upon the fact that he had “sold away his principles ”. 13. Her cross examination shows her membership in various social organisations and her role for social causes. She has been cross examined upon the 5 other documentary films of the Plaintiff, all of which she had seen. Her evidence shows that she had only seen the suit film in 1977 on DD. She deposed about the Bihar Movement as a movement against social and economic injustice for grassroot democracy. She has agreed that the impugned film shows interviews of the political persons who have criticized imposition and continuance of Emergency and that many people from the political party opposed to the Plaintiff and her ideology, were detained in Emergency. She has stated about various characters of the impugned film. She has naturally no knowledge about any telecast rights of the suit film, she having come to know that the DD was not entitled to show excerpts of the suit film under a special agreement of the Plaintiff with Defendants 1,2 and 3 only after she saw parts of the suit film in the impugned film and questioned the Plaintiff. 14. Defendant No.4 has examined himself on behalf of the 10 Defendants. He is also a documentary film maker. The impugned film was produced and directed by him in 2003. His evidence shows that the entire emphasis of the impugned film was the fight against the Emergency imposed in 1975. He has interviewed leaders of all different political parties having different ideology and background to show their opposition to the Emergency, including Jay Prakash Narayan. He claims to be an innocent user of the archives material lying with the D.D.K and claims to fall under the proviso of Section 58 of the Copyright Act. His evidence further shows that he had no intention to defame the Plaintiff in any way. He claims that since DD had paid Plaintiff Rs.500/- for purchase of the film it was the property of the DD and that such contracts cannot be altered or modified by the Plaintiff. He has been extensively cross examined upon the characters in the film and their ideology. He has been cross examined upon the length of the footages by way of stills/shots / images taken by him. He claimes that he did not defame the Plaintiff merely by his usage of the footage from the suit film. 15. The issues require to be considered upon such oral and documentary evidence upon the law of copyright applicable to the case. ISSUE NO.1 :- Re: Limitation: 11 16. The impugned film was telecast on D.D. on 26 th May 2003. The infringement alleged by the Plaintiff could have taken place on that date. The consequences of the infringement, if any, would be thereafter. This Suit is filed on 11 th June 2004 within 3 years of the alleged infringement. Hence, it is not barred by the Law of Limitation. Issue No.1 is answered in the negative . ISSUE NO.2 :- Re: Plaintiff producer of the suit film: 17. The Plaintiff has stated that he has produced, directed, written, photographed and edited the suit film. The Plaintiff has produced the certificate of the Central Board of Film Censors issued on 29 th July, 1977 as Exhibit- A showing him to be the Producer of the Film. Hence, issue No.2 is answered in the affirmative . ISSUE NO.3 : Re: Plaintiff's Copyright :- 18. The legal concepts under the Copyright Act (the Act) would require to be first noted and understood. The Plaintiff claims copyright in a cinematograph film and claims to invoke protection under the Act. 1. Under Section 2(f) of the Act a cinematograph film is a work of visual recording on any medium produced from a process from which a moving image is produced. 12 2. Under Section 2(y) of the Act “work” is, interalia, a cinematograph film. 3. Under Section 13(1)(b) of the Act a copyright subsists in cinematograph films. 4. Under Section 17 of the Act the first owner of the copyright is the author of the work. 5. Under Section 2(d)(v) the producer is the author of the cinematograph film. 6. Under Section 26 copyright in a film subsists for a term of 60 years from the year in which the film was produced. The suit film was produced in about 1977. 19. The Defendants contend that the Plaintiff cannot claim copyright on the ground that the Plaintiff’s copyright is not registered under the Copyright Act. The Defendants rely upon the case of M/s. Mishra Bandhu Karyalaya & Ors. Vs. Shivratanlal Koshal A.I.R. 1970 MP 261 in which it is held that only after the copyright is registered can it be claimed. It is observed that only once it is registered, the author can acquire property right in it. Aside from the fact that the 13 legislation relating to the copyright itself does not provide for registration, but only maintenance of the register of copyrights under Section 44 of the Act, the said judgment has been dissented from, in the case of R.Madhavan Vs. S.K.Nayar A.I.R. 1988 Kerala 39 in which it is observed that Sections 44 and 45 are only enabling positions. 20. The Plaintiff being the producer of the suit film is its author and accordingly its first owner. The Plaintiff, therefore, has copyright in his work, being the suit film, even without its registration. Hence, Issue No.3 is answered in the affirmative . ISSUE NO.4 : Re: Infringement of Copyright :- 21. The Plaintiff claims that various shots/stills/images of his film showing the Bihar Movement which led to the Declaration of Emergency were bodily lifted from the suit film and verbatim incorporated in the impugned film constituting infringement of his copyright in the suit film. 22. The Plaintiff has stated that at 6 – 7 places in the impugned film, the shots/stills/images of the suit film photographed and edited by him are reproduced. Such reproduction is identical to the Plaintiff's shots/stills/images. 14 23. The Defendants contend that the suit film, after its telecast in 1977, remained in the archives of the Doordarshan Kendra (DDK) amongst other tapes. Defendant No.4, whilst researching material from the archives took parts of certain tapes of films without knowing or realising that they were parts of the suit film or that the Plaintiff had copyright therein. Hence Defendant No.4 denies that he is an infringer and claims to be an innocent user of the archives material. The Defendants also contend that Bihar Movement shown in the impugned film is a part of history and hence carries no copyright. 24. The Defendants further contend that extent of copying is minuscule in the impugned film which extends to a mere 86 seconds of the film which spans about an hour in duration and hence that is no substantial copying and consequently no breach of copyright. The Defendants also contend that the inclusion of the shots of the suit film are only incidental to the main theme of the film shown only by way of background and hence would not constitute infringement. 25. Piracy would involve infringement of the Plaintiff's copyright in the suit film. What is copyright and its infringement must, therefore, be understood. 15 a) Under Section 14 of the Copyright Act, copyright is an exclusive right to do or authorise the doing of certain specified acts in respect of a work or a substantial part inter alia of a cinematorgraph film. b) Under Sub Section14 (d)(i) such copyright is the right to make a copy of the film including a photograph of any image forming a part thereof. c) Under Section 2 (m)(ii) of the Act an infringing copy of the cinematograph film is a copy of a film made on any medium by any means. d) Under Section 51 of the Act a copyright is taken to be infringed when any person without a licence from the owner of the copyright interalia does anything which is in the exclusive right of the owner of the copyright. e) The explanation to that Section provides that reproduction interalia of an artistic work in the form of a cinematograph film is an infringing copy. f) Under Section 2 ( c ) of the Act artistic work means a painting, sculpture, drawing, engraving or photograph , a 16 work of architecture and artistic craftsmanship. g) Under Section 52(s) such photograph cannot be of a part of a film. h) Under Section 52 (u)(ii) of the Act an inclusion of an artistic work only by way of background or which is only incidental to the principal matters in the film would not constitute infringement. i) Under Section 58 of the Act, the infringing copy of the work is deemed to be the property of the owner of copyright. j) However under the proviso to that Section, there is no remedy in respect of the conversion of any infringing copies if the infringer was not aware of the subsistence of copyright in the work or reasonably believed that the copies did not involve infringement of the copyright. 26. The seminal contention of the Defendants is that they have not infringed the Plaintiff's copyright, if any, as Defendant No.4 as the Producer and Director of the impugned film, took the shots from the tapes in the archives of the DDK being tape No.80 without realising the origin of the shots or 17 the liability for copying the shots. 27. An Archive, as defined in Black's Law Dictionary, is a place where public, historical or institutional records are systematically preserved. It also means any systematic compilation of materials, especially writings in physical or electronic form. 28. Mr. Sebastian rightly argued that once it is seen that the film is a work in which copyright subsists, any shot or still from any film cannot be lifted and reused as that would be breach of copyright contained in that film. It is for the person who researched material relating to the Bihar Movement, or for that matter for any of the events that led to Declaration of Emergency from the DDK archives, to ascertain and verify the origin of the shots. The shots and stills as taken are from the suit film. 29. The suit film, has been produced by the Plaintiff as Exhibit- D in evidence. The suit film shows the name of the Plaintiff as the Producer, Director, Editor and Photographer. Though Defendant No.4 can research the idea contained in the suit film from the D.D.K Archives, he cannot bodily lift any single shot or image of the film and use it in his new film without infringing the statutory copyright that it carries. The 18 liability for so dealing with such copyright is the statutory liability to which he exposes himself unless he takes the licence or permission of the author to reproduce the shots in his film or pays consideration as agreed by the author for utilisation of the work in which the author has copyright. 30. The cross examination of Defendant No.4 shows that he took the footage of the suit film from D.D.K archives. The footage had no soundtrack. He used his own soundtrack in the impugned film. He has stated how he got pieces of footage from D.D.K archives which were unconnected pieces of a film which turned out to be the suit film. He had no knowledge that it was the suit film or that it was of the Plaintiff. He did not know the Plaintiff. He could not identify the documentary of which the footage was part. He had not heard about the suit film or seen it. He only used the shots from the D.D.K archives' tapes. The tape library did not make any mention about the particulars of the shots and permitted its unconditional use. He had independently written the impugned film script and edited the visuals. How he has edited the visuals from the suit film is not explained in his evidence. He has also been cross examined on his own position with the DD. He is the contractual employee required to make news reports and documentary films as directed by his superiors. He was assigned the production of the 19 impugned film by the then Additional Director General of the DDK. The script was provided by the superiors. The decision to interview the people in the film was not his. It was of the then Additional Director General of the DD. However, he did “some research ”. He has explained how he accessed the DDK archives and what he claimed from them for making his documentary film. He has deposed that there were no names on the archival types of visuals which he got from the DDK without any soundtrack which he used as his visuals in his documentary film. He did not know or recognise the Plaintiff in the film. He did not know the sources from where the visuals which he used originated. He freely used the footage from the DDK archives without knowing from where it originated, but upon the premise that it was either bought by DDK or shot by its cameramen. Since the visuals in different pieces given to him had no soundtrack or credit titles and the DD maintains no record, he claims that there is no infringement of copyright. His cross examination shows that after the suit was filed DD formed an internal committee to ascertain as to whether any footage of any outsider was