Tag Archives: copyright infringement

Sanjay Kumar Gupta vs Sony Pictures Network India

Colorful letters forming the word copyright

Brief Facts of the Case

The Appellants contend that the Respondents should be held liable for infringement of Copyright of their concept. Appellants run a quiz show by the name of Jeeto while the respondents are proprietors of Kaun Banega Crorepati.

The Appellants claim that they’d floated their concepts to the respondents who in turn breached their confidentiality and copied their concept for their show.

The entire claims of the Appellants rests on the argument that they have copyright over the concept of involving at-home players in the quiz show.

Issues Raised

There are, inter alia, two main issues raised by the Trial Court in the present case.

Firstly, whether the copyrights claimed by the plaintiff in the concept of "Jeeto   Unlimited"   is   an   original work for the purpose of the Copyright   Act,   1957?

Secondly, whether   the   plaintiff is entitled   to   a   decree   for infringement of his copyright   work?

Arguments by the Parties

The Appellants have based their claims on two broad arguments, i.e there was a breach of confidentiality on part of the respondents and that they (the Appellants) had copyright over the concept of Jeeto.

In support of their first argument, the Appellants put forth that they had floated the concept to the defendants who in turn had forced them to sign a waiver absolving them of any liability in case of disclosure.

In support of their argument, the Appellants pleaded that they presented this concept to the respondent who run and produce the popular game show “Kaun Banega Carorepati” (KBC). They allege that the Respondent had copied the concept which was presented by them in and hence violated the copyright of the appellants.

Further, they point out that there is certain similarity between the concept of 'Jeeto Unlimited' and KBC.

“1. Game will be played simultaneously with the contestant and the home audience.

  1. Home audience answers the same question that has been asked to the contestant
  2. Home viewer can participate by watching the television for questions and giving the answer through SMS/email
  3. Reward depends on the amount of money for which the question is being played
  4. Home Viewer will be selected through digital mode programming by the channel‟s technical team”

On the other hand, the Respondents have countered that the Appellants had no Copyright over the concept used in Jeeto Unlimited. They have also asserted that there is substantial similarity between the two shows even though certain concepts are similar.

The Respondents point out the following distinctions between the two shows:

  1. Contestants in the Respondent’s show are selected on the basis of who can answer a question the fastest. Contestants in the Appellant’s show are selected through the lottery method.
  2. The games played by the contestants and the games played by the home-viewers do not overlap in the Respondent’s show. In the Appellant’s show however, the home viewers are invited to answer the questions posed to the contestant and is used as a hint or a “lifeline” by the contestant.
  3. The Respondent’s show is a pre-recorded event where home viewers get to watch the pre-recorded episode. In the Appellant’s show, the contestants and the home viewers play the game simultaneously.
  4. The games played by the contestant and the home viewers are separate, and their rewards are different as well in case of the Respondent’s quiz show. In case of the Appellant’s quiz show, the home viewer whose correct response was chosen by the contestant is rewarded by splitting the increase of monetary amount between the contestant and the home viewer.
  5. In the Respondent’s show the contestant is provided only one opportunity to answer the question correctly. In the Appellant’s show, the contestant is negatively marked for the first wrong answer, and the game ends on the second wrong answer.

Decision of the Court

The Court was quick to dismiss the first claim based on the findings of the Trial Court. The Appellants could not produce the alleged consent/waiver form nor did they make any effort to call for its production in court. The Court also took note of the fact that media houses have a general practice of signing such forms before meetings to ensure that should any broadcast/publication have contents similar to those discussed in the meetings, they won’t be held liable. Thus, it shows that the Appellants knew of the consequences before they signed such a form or attended such a meeting.

The Court has relied on the principles laid down in the Supreme Court case of R.G. Anand vs Deluxe Films. The Apex Court, in this case, avers that there can be no copyright in an idea, principle, subject-matter, themes, plots etc.

The stated that:

“..in law what is copyrightable is not an idea, principle, subject-matter, theme, plot etc but how such aspects are brought into a form of literary work or dramatic work or artistic work or musical work or cinematographic film or sound recording or actual live shows/performers rights or broadcasting rights….”

The Court relied on the fact that one of the witness of the Appellants that was produced in Trial Court had himself stated that the concept of audience/viewer engagement has been earlier used in various television programmes.

The Court relied on Section 16 of the Copyright Act, which states that:

“No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.”

In that light, the Court found that concept is not a subject matter of copyright. It is not a copyright work as provided envisaged in section 2(y) or Section 14 or Sections 37 to 39A of the Copyright Act.  The Court stresses that a concept cannot be a subject matter of copyright because a concept must be transformed into a  form of a literary work or dramatic work or musical work or artistic work or cinematographic work or sound recording or a performer’s right or a live show for it to have any Copyright protection in that particular work.

The Court also ruled that there is no averment that appellants are first in the world who have innovated such a concept of play along audience sitting at home. The concept of a play along audience sitting at home was already in public domain.

Conclusion

The concept of a quiz show is a concept which is otherwise well known – one can argue that it is an internationally popular form of quiz shows.

Thus, the Delhi High Court, in this instance, has only reiterated what the Supreme Court had already laid down in the case of R.G. Anand vs Deluxe Films.

New ideas and concepts spring from old ones. Granting of copyright protection to ideas and concepts would render creativity obsolete. Time and again, when this issue of copyright of ideas crop up, the Courts have understood the necessity of allowing creative freedom over ideas and protection over work.

Yet, we constantly have cases where one party alleges that they have the Copyright over an “idea” or a “concept”.

While this judgment upholds the law already laid down, what is needed is for the Courts to lay down guidelines to determine how concepts differ from work. The Courts need to give the term “concept” a concrete definition which can be used as a guideline in future cases to quickly determine whether copyright should exist or not.

We hope this article was a useful read. The judgment can be downloaded here. 

Please feel free check our services page to find out if we can cater to your requirements. You can also contact us to explore the option of working together. 

Best regards – Team InvnTree   

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Non-payment of Copyright royalties – raids on Indian music companies

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The Enforcement Directorate (ED) raided the Mumbai offices of major Indian music companies – Universal, T-series, Sa Re Ga Ma and YRF Music, on Friday the 3rd, for non-payment of royalties and laundering the royalty money into investments.

The raids were made in relation to a case against two entities that handle licenses in the Indian music industry, namely, the Indian Performing Right Society (IPRS) and the Phonographic Performance Limited (PPL). Chitra Singh, widow of ghazal singer Jagjit Singh, had filed an FIR with the ED naming IPRS and PPL. Script writer Javed Akhtar too had made a complaint about non-payment of royalties. The ED began investigations into allegations of money laundering derived from non-payment of license royalty.

IPRS is a copyright society that issues licenses for public performances, while PPL is a copyright society dealing with sound recordings. The two copyright societies are embroiled in various legal issues. One of them concerns the legality of these companies being allowed to issue licenses under the Indian Copyright Act. Another legal issue concerns the non-payment of royalty and subsequent money laundering. According to investigations made by the ED, IPRS had assigned their rights to issue licenses and collect royalties to PPL to share revenue. However, PPL allegedly indulged in fraudulent activities and did not pay IPRS their due royalty.

The ED is a specialized financial investigative agency that enforces the Prevention of Money Laundering Act, 2002 (PMLA). The music industry companies collected royalty from consumers and were entitled to pay 50% of the collected amount to music composers and lyricists. However, this money was supposedly used by different people in other investments. What makes the case noteworthy is that the fraudulent activities concerned are said to involve amounts up to Rs 1,500 – 2,00 crores (USD 230 million to 307 million).

The ED teams have apparently seized several incriminating documents pertaining to the records of royalty collections over the period and its fraudulent use. These documents will be gathered from Kolkata and Delhi to identify a money trail. It remains to be seen whether these companies will be allowed to continue issuing licenses, and what happens of the royalty that is rightfully owed to the composers and lyricists.

I hope you found our article informative.

Please feel free check our services page to find out if we can cater to your requirements. You can also contact us to explore the option of working together. 

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Nuances of Copyright infringement by manufacture of products based on Engineering drawings

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A recent judgement of the Delhi High Court in Holland L.P. and another. vs S.P. Industries calls for a debate on copyright infringement, and overlap and exclusivity between copyright and industrial design protection laws in the country.

We start by providing an overview of events that led to the dispute between the parties. Holland L.P. had designed and developed an Automatic Twist Lock (“ATL”) system, and has supplied the same to the Indian Railways over the years, with an Indian partner. Indian Railways had floated a tender in the year 2012 for replacement and repair of a list of parts of the ATL devices supplied by Holland L.P. and its partner. The Indian partner of Holland L.P. and S.P. Industries participated, with the latter emerging as the successful bidder.

In this backdrop, Holland L.P. (“Plaintiff 1”) and its partner (“Plaintiff 2”) had sought permanent injunction restraining S.P. Industries (“Defendant”) from manufacturing, selling, offering for sale, advertising, directly or indirectly ATL and parts thereto, alleging that such acts of the Defendant amounts to infringement of copyright of the Plaintiff. The Court however, ruled in favour of the Defendant.

Now referring to the particulars, engineering drawings (2D drawings) of the ATL prepared by Plaintiff 1 was made available as part of the tender by Indian Railways with permission from Plaintiff 2. The Plaintiffs contended that they are the owners of the copyright over the engineering drawings and they have the exclusive right over three-dimensional representation of the engineering drawings. In other words, the Plaintiffs contended that they have the right to prevent others from manufacturing, selling, offering for sale or advertising a product based on the engineering drawings. The Plaintiffs further contended that engineering drawings are not “Design” as per The Designs Act, 2000, since such drawings are “functional” and do not “appeal to the eye alone”. The instant contention is particularly relevant because, in case the subject matter over which the Plaintiffs are claiming copyright protection, is protectable under The Designs Act, then copyright would cease after the Plaintiffs reproduce the ATL 50 times by an industrial process, as per Section 15 of the Indian Copyright Act. The Plaintiffs had in fact reproduced the ATL systems 50 times by an industrial process. 

On the other hand, the Defendant contended that the subject matter over which the Plaintiffs are claiming copyright, is protectable under The Designs Act, and since the Plaintiffs have reproduced ATL systems at least 50 times, the copyright of the Plaintiffs has ceased.

While there were various other contentions, we are particularly interested in understanding whether engineering drawings is subject matter of copyright protection alone, or are they protectable as industrial design under The Designs Act.

The Court is of the opinion that engineering drawings made for the purposes of production of ATL systems is subject matter, which is protectable as industrial design under The Designs Act. The Court is of the opinion that, any design (such as engineering/machine drawings) which is used for the purpose of industrial production of an article, is protectable as industrial design. The Court draws the instant opinion by conjoint reading of Section 2(d) of Designs Act, 2000, Section 14(c) and 15(2) of the Copyright Act, 1957.

We agree with the Court’s interpretation only in part for reasons that follows. One would agree that a set of engineering drawings would include drawings that define the way a product looks. In other words, such subset of drawings defines how the finished article/product appeal to and are judged solely by the eye. Hence, such drawings may be subject matter of industrial design protection. However, engineering drawings may also include a subset of drawings that define how certain parts, which are housed inside the product, are configured. Hence such drawings correspond to parts that are purely functional and are incapable of appealing to and being judged solely by the eye. Hence, it may be inappropriate to come to a conclusion, as the Court has, that any design which is used for the purpose of industrial production of an article, is protectable as industrial design. Our sense is that, design of product will include subject matter, such as engineering drawings of “housed/functional” parts (purely functional and not expressly contributing to aesthetics), over which only copyright protection applies, and will also include subject matter, which substantially defines how the product is perceived by the eye, which is protectable as industrial design.

Having made the above observation, it is now worthwhile to explore whether the owner of copyright over technical drawings corresponding to such functional parts (not the product as a whole, which is subject matter of industrial design protection) stop others from manufacturing such functional parts. Section 52(1) of the Copyright Act precisely deals with this matter.   

Section 52(1): The following acts shall not constitute an infringement of copyright, namely:-

(w) the making of a three-dimensional object from a two-dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device.

The above section makes it clear that, even though one may hold copyright over engineering drawings over purely functional parts, they will not be able to stop third party from producing such parts. In other words, provisions of the Copyright Act cannot be used to stop third party from producing (including other acts of commerce) such functional parts, irrespective of whether they are visible or hidden from being gauged by the eye.

In conclusion, drawings that define the way an article/product appeals to and is judged solely by the eye, is protectable as industrial design, and copyright in the same ceases to exist once the article/product is reproduced 50 time by an industrial process by the owner. Drawings of purely functional parts of an article/product are not protectable as industrial design, and only copyright protection exists. However, such copyright is not infringed by third party who produces such functional parts.

I hope you found our article informative. The judgment can be downloaded below. 

Please feel free check our services page to find out if we can cater to your requirements. You can also contact us to explore the option of working together. 

Best regards – Team InvnTree   

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Copyright Dispute between Zee and Saregama

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In a recent Copyright infringement case, Zee Entertainment Enterprises Ltd (an Indian media and entertainment company) moved the Delhi High Court alleging infringement by Saregama India Ltd (an Indian music label and content producer for Indian television) over Zee’s copyright on songs from 29 movies. According to Senior Advocates representing Zee, the Plaintiff (Zee) has the copyright to broadcast these 29 movies and songs from these movies. Saregama India Ltd has allegedly exploited Zee’s copyright over these songs from 29 movies by way of playing the songs and allowing internet users to download them.

Interpretation of the Allegation

Zee, in its plea said Saregama India (Defendant) has been misrepresenting itself to be the copyright assignment holders of the sound recordings as well as audio visuals of the songs incorporated in the 29 movies, whereas, the rights to the recordings exclusively vests with Zee. Senior advocates representing Zee contended that Saregama (Defendant), as per their reply to the legal notice preceding the suit, claims assignment of copyright by the producers of the movies (in question) in the year 1981. During 1981, the medium of recording was only in the form of LPs (long playing vinyl record or phonograph).

Referring to the section 18(1) of the Copyright Act, 1957, the representatives of the plaintiff contended that the assignment of 1981 could not have vested in the Defendant the right to exploitation of the copyright in the “medium” or “mode” of recording that did not exist and was not in commercial use in 1981. The Plaintiff (Zee), sought to injunct the Defendant from exploiting the copyrighted works through CDs, DVDs and magnetic tapes. The Court enquired, whether or not, technological advancement in sale of music in the form of LPs as existed earlier to now CDs, DVDs and magnetic tapes would not fall within the meaning of “medium” within provision of Section 18(1) of the Copyright Act, 1957.

Actions

The Court, on December 23, 2016, held that the aforementioned contention requires due consideration and refused to grant injunction with respect to CDs, DVDs and magnetic tapes. On the contrary, the Court passed injunction restraining the Defendant from exploiting the “medium of ring tones” and “internet”.

The Delhi High Court further asked Saregama to deposit Rs. 20 lakh subject to which, the Defendant, shall, till the further date of hearing be entitled to stream the said music on its website and to permit download of songs as was being done but shall not be entitled to grant any new or fresh licences with respect to the said works. The Court listed the matter for further consideration for Jan 24, 2017.

Conclusion

This order does not provide a clear justification as to why or how CDs, DVDs and magnetic tape mediums differ from the internet and ringtones. A clear rationale is awaited until the next date (Jan 24) of decision. However, it is believed that if the sought injunction is granted with respect to CDs, DVDs and magnetic tapes this case would have an impact on the media companies.

Read the order here.

We hope this article was a useful read. 

Please feel free check our services page to find out if we can cater to your requirements. You can also contact us to explore the option of working together. 

Best regards – Team InvnTree   

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Delhi university Copyright case – University wins over publishers

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This month, we witnessed a powerful (progressive?) judgement by the Indian Appellate Court regarding the Delhi University copyright infringement case. Here, the plaintiffs, namely, Oxford University Press, Cambridge University Press, and Taylor & Francis Group, alleged that Delhi University and Rameshwari Photocopy Services infringed the plaintiffs’ copyrights of various publications.

Rameshwari Photocopy Services has a licensed shop in the campus of Delhi School of Economics (University of Delhi) where students buy course packs authorized by professors who taught courses at the university. The course packs prepared by the shop included subject matter that had been photocopied from several textbooks published by the plaintiffs.

The plaintiffs argued that the inclusion of these pages amounted to an infringement of copyright related to their publications. Further, they provided examples of similar cases decided in other countries such as the United States of America, United Kingdom and Canada, wherein claims of copyright infringement were upheld.

Regarding copyright in the field of education, Section 52(1)(i) of the Indian Copyright Act lists acts which are not to be considered as infringement of copyright, as follows: “(1) The following acts shall not constitute an infringement of copyright, namely…the reproduction of any work … by a teacher or a pupil in the course of instruction.

The appellate court decided that the publishers’ copyright was not infringed. The division bench, headed by Justice Nandrajog, was of the opinion that the term “course of instruction” could not be limited only to proceedings inside a classroom, as stated by the publishers. The court further clarified the difference between ‘reproduction’ and ‘publication’, by reasoning that ‘a publication would have the element of profit, which would be missing in the case of reproduction of a work by a teacher to be used in the course of instruction while imparting education to the pupils.’ Further, the court also noted that various decisions made by courts in other countries could not be applied under these circumstances for a developing country like ours.

This was a landmark case that took a step in the right direction for a developing nation like ours, which is in the process of increasing literacy levels by trying to impart affordable education to all. Consequently, Justice Nandrajog rightly noted: “So fundamental is education to a society – it warrants the promotion of equitable access to knowledge to all segments of the society, irrespective of their caste, creed and financial position.

We hope this article was a useful read. 

Please feel free check our services page to find out if we can cater to your requirements. You can also contact us to explore the option of working together. 

Best regards – Team InvnTree   

This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License