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High Court Of Calcutta
BARIN GHOSH
GRAMOPHONE COMPANY OF INDIA LIMITED - Appellant
Versus
SHANTI FILMS CORPORATION - Respondent
G. A. 1934 Of 1995
Decided On : 05/02/1996
COPYRIGHT - ASSIGNMENT - CONSTRUCTION - EFFECT - INFRINGEMENT - INTERLOCUTORY INJUNCTION - BALANCE OF CONVENIENCE - IRRETRIEVABLE PREJUDICE.
Fact of the Case:
The plaintiff, a record company, entered into an agreement with the defendant No. 1, a film producer, for the assignment of copyright in all works of literary, dramatic and musical nature performed in the defendant No. 1's film. The plaintiff claimed that it had manufactured records and cassettes relating to the film and had paid royalty to the defendant No. 1. The defendant No. 1 denied receiving any royalty and contended that the agreement was not an assignment but a licence granted to the plaintiff. The defendant No. 2 claimed to have obtained a copyright assignment from the defendant No. 1 and released cassettes containing dialogues and background music of the film.
Finding of the Court:
The Court held that the agreement between the plaintiff and the defendant No. 1 was an assignment of copyright and not a licence. The Court also held that the defendant No. 1 could not avoid the agreement on the ground of non-payment of royalty as the agreement did not provide for any such reversion of rights. The Court further held that the plaintiff was the owner of the copyright in the film and was entitled to an interlocutory injunction to restrain the defendants from infringing its copyright.
Issues: 1. Whether the agreement between the plaintiff and the defendant No. 1 was an assignment of copyright or a licence? 2. Whether the defendant No. 1 could avoid the agreement on the ground of non-payment of royalty? 3. Whether the plaintiff was entitled to an interlocutory injunction to restrain the defendants from infringing its copyright?
Ratio Decidendi: 1. In determining whether an agreement is an assignment of copyright or a licence, the Court must look at the substance of the agreement and not merely its form. 2. An assignment of copyright is a transfer of the entire copyright, while a licence is a permission to do something that would otherwise be an infringement of copyright. 3. The agreement between the plaintiff and the defendant No. 1 was an assignment of copyright as it transferred the entire copyright in the film to the plaintiff. 4. The defendant No. 1 could not avoid the agreement on the ground of non-payment of royalty as the agreement did not provide for any such reversion of rights. 5. The plaintiff was the owner of the copyright in the film and was entitled to an interlocutory injunction to restrain the defendants from infringing its copyright.
Final Decision: The Court granted an interlocutory injunction restraining the defendants from infringing the plaintiff's copyright in the film.
( 1 ) ON 21st August, 1986 an agreement was entered between the plaintiff and the defendant No. 1. The said agreement contains the following, amongst others, covenants :"1. This agreement shall be for the film 'shatru' year (s) commencing on the 21st day of August 1986 and shall continue for. . . X. . successive periods of. . . X. . each on the same terms and conditions as are herein laid down unless the company terminates the agreement by giving notice in writing to the producer 60 days before the expiration of the initial or extended period
( 2 ) FOR the purpose of this agreement the following words shall have the meanings set forth against them :"work" shall mean any one or more of literary dramatic musical or artistic work as defined in the Copyright Act, 1957. "record" shall include a gramophone disc record, magnetic tape record (whether reel to reel, endless loop, in cassette or cartridge form or otherwise howsoever) or any other contrivance or appliance whatever bearing or used for emitting sounds whether or not the same also bears or can bear visual images or is or can be joined to be used in conjunction with or part of a contrivance or appliance bearing or used for giving visual images but shall exclude a cinematograph film as immediately hereafter defined. "cinematograph FILM" shall include soundtrack and any recording however made of a sequence of visual images which is capable of being used as a means of showing that sequence as a moving picture (whether or not joined to or part of a record as defined herein) provided that it shall only include such recordings as aforesaid as are used for presentation through cinema, theatrical or television transmission or diffusion media or by any guage of film derived from such recordings so presented and shall not include any such recordings as are used for presentation in any other manner whatsoever. "performance" shall include speech dialogue monologue recitation acting singing playing an instrument or instruments conducting or directing either alone or with another or others or any other sound and visual effects of any kind. "producer's FILM" shall mean all cinematograph films commenced and/or under production during the period of this agreement and the extension (s) (if any) thereof whether or not the production thereof may have been completed after the expiry of this agreement, which contain performance of any work (s) in respect of which the producer directly or indirectly : (i) is or shall be the producer or owner or (ii) otherwise owns or controls or shall own or control the right to make available licence and assign the rights granted to the company under this agreement. "contract RECORDINGS" shall mean recordings of performances comprising the Producer's Films whether or not they are incorporated in the final versions of the producer's films. "contract WORKS" shall mean all works of a literary dramatic or musical nature performed in contract recordings
( 3 ) (A) The producer hereby assigns and transfers and agrees to assign and transfer to the company absolutely and beneficially for the world : (i) the copyright for making records of all contract works which are made available to the company under the terms of this agreement and the copyright, performing right and all other rights title and interest in and to the literary dramatic and musical works embodied in the Producer's Films including all rights of publication, sound and television broadcasting, public performance and mechanical reproduction of the said works. (ii) the sole and exclusive right to make or authorise the making of any record embodying the contract recordings, either alone or together with any other recordings. The producer undertakes to execute or obtain the execution of such further assignments or assurances as may be required to safeguard the parties' rights. (B) It is hereby declared that the rights hereby assigned and transferred or agreed to be assigned and transferred in pursu
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