The Plaintiff filed the suit before the Delhi High Court for restraining the Defendant from infringing the copyright of the Plaintiff in the soundtrack and audio visuals (over the music of 29 cinematograph films). The Plaintiff contended that the claims of the Defendant arise from assignment in the year 1981. Citing Section 18(1) of the Copyright Act, it was contended that this assignment cannot vest in the Defendant the right of exploitation of the copyright in the medium or mode of exploitation which did not exist and consequently, not in commercial use then. [Delhi High Court Order in Zee telefilms v Saregama]
The Plaintiff sought to injunct the Defendant from exploiting the copyrighted works through CDs, DVDs and magnetic tapes. The Court held that the aforesaid contention requires due consideration and refused to grant interim injunction with respect to CDs, DVDs and magnetic tapes. However, the Court was of the view that “injunction restraining the Defendant from exploiting the medium of ring tones and internet has to follow even at this stage.” Further, “Subject to the Defendant depositing in this Court a sum of Rs.20,00,000/- by tomorrow i.e. 24th December, 2016 and to which the senior counsels for the defendant agree, I am at this stage refraining from granting the said injunction. Subject to the said deposit, though the defendant till the next date of hearing shall be entitled to stream the said music on its website and to permit download thereof as is being done, but shall not be entitled to grant any new or fresh licences with respect to the said works. The defendant to also maintain the accounts of the subject works.”
Comments
The rationale differentiating CDs, DVDs and magnetic tapes from internet is not clear from this Order.
The rationale is, it would seem,, the distinction between physical formats (whether analog or digital) and uploading on the Internet. I have not seen the 1981 agreement, but it was not rare then for the terms of such agreements to cover all forms of reproduction in physical format, but not to communication to the public by uploading on the Internet: in fact the latter became an exclusive statutory right with the 1994 definition of “communication to the public” which has since been refined by the 2012 amendments. However I do agree that if the terms of the agreement had been broad enough to cover all forms of exploitation, existing or future, then it would have covered the Internet as it stood prior to the insertion of the second proviso to Section 18 by the 2012 amendments.