Copyright

Indian Heritage Society v. Meher Malhotra [CS(OS) 2717/2011]- copyright infringement and diplomatic immunity


An interesting case involving diplomatic immunity and copyright infringement was heard by the Delhi High Court recently. The parties were the Indian Heritage Society and another (plaintiffs) , represented by Mr. Pravin Anand and Ms. Tanvi Misra and Meher Malhotra (defendant), represented by Mr. Vikram Dogra, Mr. Samrat Nigam and Ms. Ankita Mahajan. the_simpsons.10x16.make_room_for_lisa-300x225

The facts were that an Annual Day Event was organised by the plaintiffs in February, 2011. The 2nd defendant, daughter of the Ambassador of Ecuador in India, was assisting the plaintiffs in the publication of a book which was to consist of photographs of Yoga Asanas and their improvisations with props to help tackle health issues. On becoming aware that a photo shoot for the same was required at the Annual Day event as well as of the practice sessions running up to it, the 2nd defendant recommended her friend, 1st defendant to be hired as a photographer. The terms of engagement of the 1st defendant required all her activities to be under the complete guidance, control and supervision of the plaintiffs as well as that such photographs should not be delivered to anyone else.  This was agreed upon by all the involved parties. However, in contravention of the same, the photographs were delivered to the 2nd defendant who refused to hand them over to the plaintiffs. The plaintiffs submitted that there was a great possibility of misuse by the 2nd defendant. She had already attempted to use them as leverage for her to join the teacher’s training program and stay at the Yoga Centre and thereby obtain a work permit. The plaintiffs contended that this was a violation of their copyright and sought an injunction for the same. Moreover, they submitted that the 2nd defendant was not entitled to diplomatic immunity in the instant case. Hence, Plaintiffs submitted that an injunction could be granted against her.

The Court held that under S. 17(b) of the Copyright Act, 1957, any person at whose instance photographs were taken would be the first owner of copyright. In the instant case, the plaintiffs were the first owners of the copyright in the photographs and therefore, there was a clear threat to their rights under the Copyright Act. Moreover, the Court ruled that the 2nd defendant did not have any diplomatic immunity in the instant case. This was for two reasons: first, although family members of diplomats enjoy immunity as a general rule, this is subject to exceptions laid out in the Vienna Convention on Diplomatic Relations, 1961. One such exception is professional activity which is the case here. Therefore, the 2nd defendant does not enjoy diplomatic immunity. Secondly, S.86, CPC which deals with suits against foreign rulers, Ambassadors and envoys is inapplicable in the instant case. S.86 provides that suits can be instituted against such persons only with the sanction of the Central Government. However, this section with respect to Ambassadors only applies to the members of the staff or retinue of the Ambassador. The daughter of the Ambassador is neither a member of the staff nor the retinue of the Ambassador. Therefore, S.86 was held to be inapplicable. Hence, the question of sanction from the Central Government does not arise. For these two reasons, the Court ruled that the 2nd defendant did not enjoy any diplomatic immunity.

Consequently, the Court held that an injunction could be granted against the 2nd defendant as there was a violation of the plaintiffs’ copyright and the 2nd defendant did not enjoy diplomatic immunity.

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L. Gopika Murthy

Gopika is a fourth year student at National Law School of India University, Bangalore. She was formerly the Chief Editor of the Indian Journal of Law and Technology. Her first exposure to Intellectual property law and SpicyIP was through the University Moot Rounds at NLSIU, Bangalore in her first year. She has been regularly following the developments in the field of IPR since then and she hopes to contribute to the reporting of such developments. Her areas of interest in IP include copyrights, open access, fair dealing and trademarks.

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