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IN THE HIGH COURT OF BOMBAY
Mrs. Sujata Manohar, J.
Garware Plastics Polyster Ltd. others.... Plaintiffs.
Versus
Telelink others.... Defendants.
Notice of Motion No. 103 of 1989 in Suit No. 87 of 1989 alongwith Notice of Motion No. 151 of 1989 in Suit No. 151 of 1989, decided on 31-1-1989.
Advocates appeared :
In Notice of Motion No. 103/89 in Suit No. 87/89 :
Anil Diwan, with Ashok Desai, J.I. Mehta, P.M. Amin and Harish Mehta i/b Ramesh Makhija and Co., for plaintiffs in support.
A. Hidayatullah, D.J. Kbambatta i/b Gagrat Co., for defendants Nos. 1, 2, 5 8.
Harish Tacker, for defendant No. 3.
I.M. Chagla with J.D. Dwarkadas. S.B. Jaisinghani and J.P. Avasia i/b Federal Rashimikant, for defendant Nos. 4 7.
R.V. Pai, with Mrs. Shakuntala A. Mudbidri, for Intervenors (All India Cable T.V. Operators and Owners Association) to show cause.
In Notice of Motion No. 151/89 in Suit No. 151/89 :
Ashok Desai with M.C. Chinoy and P.M. Amin i/b B. Momin and Co. for plaintiff in Support.
A. Hidayatullah, B.J. Khambatta i/b Gagrat Co. for defendants No. 1, 2, 6 7.
I.M. Chagla with J.D. Dwarkadas S.B. Jaisinghani and J.P. Avasia i/b Federal Rashmikant, for defendants Nos. 3, 4, 9, 11 12.
Harish Thacker, for defendant No. 8.
R.V. Pai with Mrs. Shakuntala A. Mudbidri, for Intervenors (All India Cable T.V. Operators and Owners Association) to show cause.
Sections 2 (dd), 2 (ff)-Cinematograph Broadcast – Communication -Film show on T. V. without Licence-Held-It is not a private Broadcast such a display of films on cable T. V. liable to he prevented.
It is true that the network operates through the connection of a cable to all these various apartments or houses. But this cannot in any way affect the character of the audience. The viewers are not members of one family or their guests. They do not have even the homogeneity of a club membership. And even club members have been held to be members of the public. The viewers are residents in different apartments or house who are in no way connected with each other except by cable.
It may be that in some of the homes members of the household will watch the film together. But this does not mean that the entire audience taken together are members of a common household or are family members. They can only be viewed as portion of public. The viewers cannot be considered as domestic viewers of the owner of the copyright i. e. the plaintiffs. They must be considered as members of the public. The author of the copy right is, therefore, directly affected as he is deprived of earnings from his intellectual property. What is more an audience which pays for watching the film cannot be considered as a domestic audience of the person broadcasting the film.
2. The plaintiffs in Suit No. 151 of 1989 are the producers of cinematograph films, who have retained with themselves the video copyrights in respects of such films. Some of these producers have granted the right of telecasting their films to the Government of India or Doordarshan but have retained with themselves the right to telecast films, inter alia, by Cable T.V.
3. These two suits have been filed against various persons who obtain video cassettes of cinematograph films from the market and show video films over a Cable T.V. network which they have set up in various houses, apartments or localities for a fee which they call, 'maintenance charges'. Any person whose T.V. network which they have set up in various houses, apartments or localities for a fee which they call ,maintenance charges'. Any person whose T.V. set is connected to such a Cable T.V. network can, by payment of certain charges have the benefit of viewing on his home T.V. set video films shown by the defendants on their Cable T.V. network. According to the plaintiffs in both these suits, by showing films over the Cable T.V. network the defendants have committed breach of their copyright. The present Notices of Motion have been taken out by the plaintiffs to restrain the defendants from communicating by way of exhibition or broadcasting over T.V. either by wire of by wireless diffusion by means of a Cable T.V. network or dish antenna any film in which they do not possess video copyrights.
4. Under section 13(1) of the Copyright Act, 1957 a copyright is recognised in respect, inter alia, of cinematograph films. Under section 2(f) of the said Act "Cinematograph film" is defined to include the sound track, if any, and 'cinematograph' shall be construed as including any work produced by any process analogous to cinematography. An Explanation, which is added by way of amendment in 1984, provides that for the purposes of this clause, 'video films' shall also be deemed to be work produced by a process analogous to cinematography. In other words, video films are included in the definition of 'cinematograph film'. Therefore the Copyright Act, 1957 recognises copyright in video films. Section 14 defines copyright. Under section 14(1)(c), copyright in a cinematograph film means the exclusive right to do or authorise the doing of any of the following acts, namely :(i) to make a copy of the film ; (ii) to cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public ; (iii) to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track; (iv) to communicate the film by broadcast.
5. Under section 2(d), "broadcast" is defined to mean 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. Section 2(ff) defines "communication to the public" as communication to the public in whatever manner, including communication through satellite. (Italics mine)
6. Under section 51, Copyright in a work shall be deemed to be infringed, inter alia, when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under the Act, does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright.
7. I have to consider whether by showing video films over Cable T.V. network to various subscr
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