FERNANDO V. GAMLATH

FERNANDO V. GAMLATH

SUPREME COURT
J.A.N. DE SILVA, CJ.
EKANAYAKA, J. AND
SURESH CHANDRA, J.
S.C. APPEAL NO. S.C.(CHC) 04/2001
C.H.C.NO.12/96(3)
FEBRUARY 10TH,2011

Code of Intellectual Property Act (No. 52 of  1979) - Section 10 - The author of a protected work shall have the exclusive right to do or authorize any person to reproduce the work, make translations, adaptation, arrangement or other transformation of work or communicate the work to the public - Section 19(1) - The rights referred to in Section 10 shall be protected during the life time of the author and for fifty years after his death. - Law relating to the trademarks and passing off

The Plaintiff was the window of The late Mr. C.T. Fernando. who had done musical compositions for the song "Pinsiduwanne" and was its singer as well. The Defendant had included the said song in teledrama without the permission of the Plaintiff and had telecast it for commercia1 purpose. The Plaintiff claimed intellectual property rights to the tune of the said song arid averred that the Defendant had breached the Plaintiff's intellectual property rights. The Defendant whilst denying the breach of the Plaintiffs rights had also stared that the Plaintiff did not have rights to the said song as the Defendant had taken the said song from a textbook published by the Educational Publishing Department in 1993.

After trail the learned High Court Judge held that the composition of the said song was that of late C.T. Fernando and the Plaintiff had acquired such rights of the late C.T. Fernando. But went on to hold that the Defendant had not infringed the rights of the Plaintiff and proceeded to dismiss other claims of the Plaintiff.

Held:

(1) When an Artiste has achieved a reputation, the rights acquired which according to law can be inherited and the works of such reputed Artiste, such as singers can be used by others only by obtaining permission from the original artiste or from those who inherit such rights which amounts to a recognition of the fame and reputation of the original singer.

(2) Use of the said musical composition by the Defendant without the permission from the Plaintiff was an infringement of the rights of the Plaintiff regarding the composition, by the Defendant.

APPEAL from the judgment of the Commercial High Court, of Colombo.

Cases referred to:

(1) University of London Press V. University Tutorial Press - (1916) 2 Ch 601

(2) Sawkins V. Hyperion Records (2005) EWCA Civ 565

(3) Walter V. Cane - (1900) AC 539

(4) Designer's Guild V. Russel Williams - (2000) UKHL 58

(5) Francis Day & Hunter V. Bron- (1963) Ch 587

(6) Competti Records v. Warner Music - (2003) E W C h 1274 (Ch)

Mahinda Ralapanawa with Chandima Gamage for the Plaintiff - Appellant

Sumedha Mahawanniarachchi for the Defendant - Respondent

Cur.adv. vult

May 06th2011

SURESH CHANDRA J,

    This is an appeal from the judgment of The Commercial High Court, Colombo in respect of an appeal filed by the Plaintiff.

The Plaintiff in her Plaint filed in the District Court of Colombo which was later transferred to the Commercial High Court, Colombo averred that her husband was the late Mr. C.T. Fernando that the said Mr. C.T. Fernando, had done a musical composition for the song "Pinsuduwanne" and was its singer as well. The Defendant had included the said song in a teledrama titled "Mal Kekulak" without the Plaintiffs permission and had telecast it for a commercial purpose. The Plaintiff claimed the intellectual property rights to the "tune" of the said song as the widow of late Mr. C.T. Fernando in terms of Section 19(1) of the Code of Intellectual Property Act No. 52 of 1979 and averred that the Defendant had breached the Plaintiffs rights under the Code of Intellectual Property. She prayed for a declaration to the effect that the tune of the said song was composed by her late husband Mr. C.T. Fernando, for an order that the Defendant had breached t

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