Garware Plastics and Polyester v. Telelink and Ors.
AIR 1989 Bombay 331
Two suits were filed in the Bombay High Court. First, Suit No. 87 of 1989 was filed by the Plaintiffs in a representative capacity on behalf of persons who held an assignment of Video copyright in respect of many cinematograph films.
Second suit being suit No. 151 of 1989 was filed by the producers of cinematography films, who have retained with themselves the video copyrights in respect of such films. These two suits have been filed against various persons who used to purchase video cassettes of cinematography films from the market and then broadcast those video films over a Cable. T.V. Network.
Under Section 14(1)(c) (existing then) of The Copyright Act, 1957, ‘copyright in a cinematography film’ means the exclusive right to do or authorize the doing of any of the following acts:
(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 utilizing such sound track;
(iv) to communicate the film by broadcast.
Whether by showing video films over Cable T.V. network to various subscribers the Defendants are broadcasting video films to the public and thereby infringing the Copyright of the Plaintiffs?
By means of a Cable T.V. network, a film is shown only inside the private homes of the subscribers. It may be wanted by the members of the subscriber household or its guests. Such a viewing cannot be considered as broadcast to the public.
Rationale of Decision: To constitute infringement of Copyright under Section 14(1)(c), the Court has to determine whether the broadcast of films in the present case through Cable T.V. is communication to public audience or to private as in case of private audience there no infringement of Copyright.
Whether a communication is public or private depends essentially on the persons receiving the communication. If they can be characterized as the public or protein of the public, the communication is to the public.
The principal criteria for determining the issue are – (1) the character of audience and whether it can be described as a private audience consisting of members of the household, (2) relationship between the owner of the copyright and the audience; and (3) Whether permitting such broadcast would in any way whittle down the protection given to the author of a copyright under the Copyright Act resulting in the owner s out of the intellectual property.
Applying the first test, it cannot be said that the audience which watches video films shown by the Defendants consists of family members and guests of the Defendants. The video film may be watched by members of the household in the privacy of their homes. However, this does not mean that the entire audience taken together are members of a be viewed as a portion of public.
According to the second test, the viewers cannot be considered as domestic viewers of the owner of the copyright i.e. the Plaintiffs.
And the last test is also satisfied. The Copyright Act is meant to protect the owner of the copyright against unauthorised performances of his work, thereby entitling him to earn monetary gain from his intellectual property. The audience which watches such video films, pays the Defendants instead of the Plaintiffs for watching the film. The author of the copyright ings from his intellectual property.
As the Hon’ble Court termed the acts of the Defendant to be ‘communication to public’, an interim order restraining the Defendants from broadcasting, by means of Cable T.V. or Dish Antenna, such cinematograph films in respect of which the Plaintiffs are the owners and/or assignees of copyright, was passed.
Author: Arunima Bishnoi, Delhi Law Faculty