Bangalore District Court
Sri.A.J.Shashank S/O A.N.Jagadish vs Aiplex Software Private Limited on 3 February, 2023
1 Com.O.S.No.1138/2022
In the Court of LXXXIV Addl. City Civil and Sessions
Judge (CCH-85 Commercial Court) Bengaluru
Dated this the 3rd day of February 2023
Present : Smt.H.R.Radha, B.A.L., L.L.M.
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 - Commercial Court)
Bengaluru
Com.O.S.No.1138/2022
Plaintiff Sri.A.J.Shashank S/o A.N.Jagadish, aged about
38 years, No.7/1, Gokulam Apartments, Flat
No.4, Munshi Akbar Hussain Road, Tasker
Town, Shivaji Nagar, Bengaluru - 560 051
(By Sri.S.Vivekananda, Adv.)
Vs
Defendants 1. Aiplex Software Private Limited, #91A, N
Cube Centre, Ideal Homes Circle, Next to
Nimishamba Temple, Rajarajeshwari Nagar,
Bengaluru - 560098
2. Sri.Girish Kumar Nanjundaiah, Flat No.304,
Amor Apartments, Plot No.316, 10th Cross, 9th
Main Road, Opp: Allahabad Bank,
Rajarajeshwari Nagar, Bengaluru - 560098
3. Sri.Sarvamangala Nanjundaiah, No.699, 3 rd
Cross, 2nd Main, BEML Layout, 3rd Stage,
Rajarajeshwari Nagar, Bengaluru - 560098
(D1 by Sri.J.S.Dinesh, Advocate;
D2 & D3 - Exparte )
2 Com.O.S.No.1138/2022
Date of Institution 05.08.2022
For Mandatory injunction,
Nature of suit Permanent Injunction and
Damages
Date of First Case
02.11.2022
Management Hearing
Date of commencement of 16.11.2022
recording of evidence
Date on which judgment
03.02.2023
pronounced
Time taken for disposal Years Months Days
1) Total duration 00 05 29
2) From the date of First
Case Management Hearing 00 03 02
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85) Commercial Court, Bengaluru
JUDGMENT
This is a suit for mandatory injunction directing the defendants to withdraw copyright strikes and to ensure activation of the plaintiff's YouTube channel 'Angaiyalli Cine 3 Com.O.S.No.1138/2022 Mane'; permanent injunction restraining the defendants from resorting to illegal and unauthorized copyright strikes against the plaintiff's channel on YouTube and damages of Rs.3,50,000/- with interest at 18% p.a. from 21.07.2022.
2. The plaintiff's case in brief is that he has created the channel 'Angaiyalli Cine Mane' on YouTube platform and uploaded thousands of film clips, scenes and songs as well as 40 feature films so far. Sri.A.N.Jagadeesh who had obtained exclusive internet and internet connected devices rights, exclusive mobile phone rights and mobile phone connected devices rights in respect of the Kannada movie 'Encounter Dayanayak' from the producer Sri.M.G.Ramamurthy of M/s Vasushree Productions under agreement dated 30.07.2013, assigned non exclusive copyrights for internet and internet connected devices as also to reassign mobile phone rights and mobile connected devices, mobile applications, Direct to Customers (D2C) rights in his favour under the agreement dated 20.11.2021. Pursuant to the same he uploaded snippets from the movie Encounter Dayanayak on YouTube during February 2022. As per the notification received from the 4 Com.O.S.No.1138/2022 YouTube on 21.07.2022 his channel was suspended due to the defendants issuing multiple copyright strikes alleging copyright violation in respect of the movie Encounter Dayanayak uploaded by him. The 1st defendant has deliberately targeted him with ulterior motives and issued copyright strikes without any right and the defendants 2 and 3 are the directors in charge of its day to day affairs; they neither replied nor took corrective action in response to his legal notice dated 23.07.2022. He has suffered loss of reputation as also monetary loss due to illegal actions of the defendants.
3. The defendants 2 and 3 are placed exparte.
4. The 1st defendant has filed the written statement admitting that it is a private limited company and the defendants 2 and 3 as the directors; they issued copyright strikes against the snippets, clippings etc. of the movie Encounter Dayanayak uploaded by the plaintiff on his channel on YouTube platform, but deny all other allegations. The specific contention of the 1st defendant is that they are an antipiracy digital solution provider to protect the valuable intellectual 5 Com.O.S.No.1138/2022 property rights of their clients in the field of internet and mobile platform. M/s Kasturi Media Pvt. Ltd. ('Kasturi Media' for Short) engaged their services by issuing authorization letter dated 20.07.2022 and copyright strikes were issued on behalf of Kasturi Media.
4(a). That Sri.M.G.Ramamurthy, proprietor of M/s Vasushree Productions being the producer of the movie Encounter Dayanayak sold its exclusive rights in favour of Sri.S.Srinivasamurthy for a perpetual period under the agreement dated 03.03.2005, besides issuing no objection for telecasting the movie, addressed a letter to M/s Prasad Films Labs to handover its sound and visual negatives. Sri.S.Srinivasamurthy in turn sold the exclusive rights of television telecasting, satellite television broadcasting, television broadcasting, satellite television broadcasting etc., in favour of Kasturi Media under the agreement dated 24.06.2006 and also addressed a letter to M/s Prasad Film Labs to handover the sound and picture negatives to Kasturi Media. Thus, Sri.M.G.Ramamurthy had no right to sell the movie rights in favour of Sri.A.N.Jagadeesh on 31.07.2013 and Kasturi Media 6 Com.O.S.No.1138/2022 alone has the absolute right over the movie Encounter Dayanayak. Despite knowing the same, the plaintiff and his father Sri.A.N.Jagadeesh have created the agreement dated 20.12.2021.
4(b). That they issued multiple copyright strikes in the capacity of authorized antipiracy service provider of Kasturi Media and YouTube disabled / suspended the plaintiff's channel after verifying the documents. They have replied by email to the plaintiff's legal notice on 29.07.2022 and also enclosed all relevant documents including the agreement in favour of Kasturi Media and disclosing that the copyright strikes were issued on behalf of the said client. Despite the same, the plaintiff has failed to approach the court with clean hands and the relief sought cannot be granted without Kasturi Media and YouTube channel being made parties to the suit.
5. Ex.P1 to P8 are marked for the plaintiff and Ex.D1 for the defendant during admission and denial of documents U/o XI Rule 4 CPC as amended by Sec.16 of the Commercial Courts Act.
7 Com.O.S.No.1138/2022
6. Based on the pleadings this court has framed the following ISSUES
1. Whether the plaintiff proves that he has non exclusive copyrights in respect of the movie "Encounter Dayanayak" for internet and internet connected devices, and non exclusive rights to reassign mobile phone rights and mobile connected devices, mobile applications, direct to customers rights?
2. Whether the plaintiff proves that the 1st defendant, without any right, targeted him by making multiple copyright strikes?
3. Whether the 1st defendant proves that the suit is bad for non joinder of M/s Kasturi Media Private Limited having absolute right over the said movie and YouTube channel?
4. Whether the plaintiff is entitled for mandatory injunction directing the defendants to withdraw the copyright strikes?
5. Whether the plaintiff is entitled for permanent injunction against the defendants as prayed?
8 Com.O.S.No.1138/2022
6. Whether the plaintiff is entitled for damages of Rs.3,50,000/- with interest at 18% p.a. from 21.07.2022 as prayed?
7. What Order or Decree?
7. The plaintiff has filed affidavit in lieu of examination in chief, examined himself as Pw1 and got marked Ex.P9 to P16; Ex.P17 and P18 are got marked by confronting the same to Dw1 during cross examination.
8. The 1st defendant has examined their legal counsel as Dw1 and the witness, Senior Marketing Analyst and HR Manager of Kasturi Media as Dw2; they have filed affidavits in lieu of examination in chief. Ex.D2 to D8 are marked through Dw1 and Ex.D9 to D14 through Dw2.
9. Heard arguments.
10. My findings on the above issues are:
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the affirmative Issue No.4: In the negative 9 Com.O.S.No.1138/2022 Issue No.5: In the negative Issue No.6: In the negative Issue No.7: As per the final order for the following REASONS
11. Issue No.1: Pw1 has filed affidavit reiterating that he has copyright over many feature films and movies including the movie Encounter Dayanayak and has uploaded 1400 film clips, scenes, songs on YouTube platform using his channel 'Angaiyalli Cine Mane' created in Google.com; and the 1st defendant issued several copyright strikes without any legal right and as a result YouTube has taken down his entire channel; and this was communicated by Ex.P14.
12. The plaintiff bases his claim on Ex.P9, the agreement dated 30.07.2013, Ex.P10 the receipt and Ex.P13, assignment agreement dated 20.11.2021. The contents of Ex.P9 speak about transfer of exclusive internet and internet connected devices rights, exclusive mobile phone rights and mobile connected devices, in five kannada movies viz., Majestic, Dharma, ENCOUNTER DAYANAYAK, Gange Baare Tunge Baare 10 Com.O.S.No.1138/2022 and AithalakKadi on permanently and perpetually for a consideration of Rs.40,000/- by Sri.M.G.Ramamurthy, the proprietor of M/s Vasushree Productions in favour of the plaintiff's father Sri.A.N.Jagadeesh; and Ex.P10 is the receipt of even date. Ex.P11 and P12 are the copies of Censor Board certificate in respect of the movie Encounter Dayanayak and Voter's ID of Sri.M.G.Ramamurthy.
13. Ex.P13, the Assignment Agreement dated 20.11.2021 speaks about Sri.A.N.Jagadeesh assigning non exclusive rights to reassign internet and internet connected devices, mobile phone rights and mobile connected devices, mobile applications, D2C (Direct to customers) rights in 60 kannada movies including the movie Encounter Dayanayak in favour of the plaintiff for a consideration of Rs.20,000/- and the consideration is shown to have been paid in cash on signing the agreement.
14. Dw1 has deposed on the basis of the authorization at Ex.D2 issued by the 1st defendant and testifies about the 1st defendant being an incorporated company and providing 11 Com.O.S.No.1138/2022 antipiracy digital rights protection solution, protection to intellectual property and copyrights of their clients such as broadcasters, production houses, brands and celebrities and that M/s Kasturi Medias Pvt. Ltd. ('Kasturi Media' for short) has engaged their services for the said purpose vide Ex.D3 dated 20.07.2022. Kasturi Media has exclusive rights of television telecasting, satellite television broadcasting, television broadcasting, private satellite broadcasting, national network, internet rights, broadband rights and all other types of copyright existing in the present and other rights that may be innovated in future, other than theatrical right of the movie Encounter Dayanayak, having purchased the same from Sri.S.Srinivasamurthy under the agreement dated 24.06.2006.
15. In order to substantiate the defence, the 1st defendant relies upon the evidence of Dw2, Ex.D10 to D14 produced and marked through Dw2 as well as Ex.D4, D5 and D1(a) exhibited through Dw1. Ex.D10 dated 03.03.2005 speaks about Sri.M.G.Ramamurthy of M/s Vasushree Productions granting exclusive rights of television telecasting, satellite television broadcasting, Terrestrial broadcasting rights, cable television, 12 Com.O.S.No.1138/2022 video, video compact disc, laser disc, digital video disk, direct to home rights, internet television rights, all pay channel television rights and all other electronic visual media telecasting rights in all formats of the movie Encounter Dayanayak in favour of Sri.S.Srinivasamurthy.
16. Ex.D12 is a copy of the letter addressed by Sri.M.G.Ramamurthy on the letterhead of M/s Vasushree Productions stating that he has no objection for Sri.S.Srinivasamurthy or his assignees to telecast the movie Encounter Dayanayak on national Network and any satellite TV channels or Doordarshan/Prasarbharati or any private/independent/autonomous satellite television channel after one year of its theatrical first release anywhere in Karnataka.
17. Ex.D16 shows that Sri.M.G.Ramamurthy addressed an irrevocable letter on 03.03.2005 to M/s Prasad Film Labs informing the sale of exclusive rights as above in the movie Encounter Dayanayak and authorizing them to handover the entire picture and sound negatives to Sri.S.Srinivasmurthy any 13 Com.O.S.No.1138/2022 number of times, to enable transferring of image and sound on U-matic tapes, Beta tapes or any other tapes/disc of any size as convenient for telecasting etc. and also requesting them to send written confirmation in this behalf to Sri.S.Srinivasamurthy; and Ex.D11 is M/s Prasad Film Labs written confirmation to Sri.Srinivasamurthy on 08.03.2005.
18. Ex.D4 is the agreement executed by Sri.S.Srinivasamurthy on 24.02.2006 in favour of Kasturi Media assigning and irrevocably granting exclusive rights of television telecasting, satellite television broadcasting, private satellite broadcasting, National network, internet, cable TV, Laser disc, AIR broadcasting, Subtitling rights, performing rights, overseas/seaborne rights and another mode of displaying on television in all formats in all media and all other copyrights which are existing in the present and any other rights that may be innovated in future other than theatrical rights of the Movie Encounter Dayanayak for a perpetual period for the entire world, for a consideration of Rs.10,00,000/- paid by cheque. M/s Prasad Film Labs on 09.06.2006 has addressed letter vide Ex.D5 to Kasturi Media confirming receipt of an irrevocable 14 Com.O.S.No.1138/2022 letter from Sri.S.Srinivasmurthy regarding transfer of exclusive rights as above.
19. The learned counsel for the plaintiff argues that the plaintiff has non exclusive rights in respect of 60 movies by virtue of Ex.P13 executed by his father and the 1 st defendant's action as an antipiracy solution provider is ultra vires the company's object; Ex.D10 was stamped in November 2005 and not before or at the time of execution as required by Sec.17 of the Karnataka Stamp Act and therefore, no reliance can be placed on the same; Ex.D10 to D14 are not proved in accordance with Sec.65 of the Evidence Act and Ex.D10(a) has blank spaces.
20. He also argues that internet or internet connected devices rights were not transferred in favour of Sri.S.Srinivasamurthy under Ex.D11, as such he could not have transferred the same in favour of Kasturi Media under Ex.D5. The producer of the movie Sri.M.G.Ramamurthy transferred the internet rights etc., for the first time in favour of the plaintiff's father under Ex.P9 and the plaintiff being the assignee of such rights, issue No.1 15 Com.O.S.No.1138/2022 should be answered in his favour and relies upon the following judgments in the context of -
(a) When no material is placed to establish the efforts made by the 1st defendant to search the originals of Ex.D10 to D14 and nothing is stated as to who is in custody of these documents and no notice U/s 66 of Evidence Act is issued to such person to produce the same, Ex.D10 to D14 are not duly proved and cannot be relied upon
(i) B.N.Sampath Kumar Vs Rahimunnisa Begum reported in (2010) 4 KCCR 2757
(b) No one can transfer a better title than he himself possesses and on of the exceptions to the rule is that the transfer is in good faith for value and there was no misrepresentation of fraud and the property was purchased after taking reasonable care o ascertain that the transferee had the requisite power to transfer and the parties acted in good faith as required U/s 41 of the Transfer of Property Act.
(i) V.Chandrasekaran & Ors. Vs The Administrative Office & Ors. reported in (2012) 2 SCC 133 16 Com.O.S.No.1138/2022
(c) A company is competent to carry out its object specified in the Memorandum of Association and cannot travel beyond the objects. When it does an act which is ultra vires, no legal relationship or effect ensues therefrom and a person dealing with the company should ensure that necessary powers have been given by the company to its agents, in addition to examining the powers of the company. An act which is ultra vires the company is incapable of ratification.
(I)A.Lakshmanaswamy Mudaliar & Ors. Vs Life Insurance Corporation of India & Ors.
reported in AIR 1963 SC 1185;
(ii) Rajendra Nath Dutta & Ors Vs Shibendra Nath Mukherjee & Ors. reported in MANU / WB / 0119 / 1981
21. Per contra, the learned counsel for the 1st defendant argues that Kasturi Media has the exclusive right in respect of the movie Encounter Dayanayak and the original censorship certificate is with them. The producer of the movie sold exclusive rights as mentioned in Ex.D10 and Sri.S.Srinivasamurthy in turn transferred the same in favour of Kasturi Media under Ex.D5. All efforts were made by Dw2 to 17 Com.O.S.No.1138/2022 secure the originals of Ex.D10 to D14 but the same was not possible as Sri.S.Srinivasamurthy has misplaced them and there is sufficient evidence to this effect as such Ex.D10 to D14 are duly proved in accordance with Sec.65 of the Evidence Act.
22. It is vehemently argued that when Pw1 admits the 1st defendant to be an antipiracy service provider, no further proof is required and the 1st defendant's action cannot be held ultra vires. The producer of the movie had no right to execute Ex.P9 as he had already transferred the exclusive rights under Ex.D10 in favour of Sri.S.Srinivasamurthy. There is no evidence to establish that the plaintiff's father had exercised any rights under Ex.P9 and therefore it should be inferred that he was aware of the transfer of exclusive rights in favour of Sri.S.Srinivasamurthy. The plaintiff has to prove his case and cannot take advantage of the weakness in the 1 st defendant's case. In this behalf the learned counsel for the 1st defendant relies upon the judgment in K.Gopal Reddy (Deceased) by LRs Vs Surayanarayana & Ors. reported in 2004 (1) KCCR
662. 18 Com.O.S.No.1138/2022
23. In the light of the rival contention of the parties, it is necessary to understand certain provisions of the Copyrights Act for better appreciation of the dispute involved in this case and also to examine the question if the actions of the 1 st defendant are ultra vires.
24. Sec.2(d)(v) of the Copyrights Act ('the Act' for short) defines author in relation to a cinematograph film or sound recording as "the producer" and Sec.2(uu) of the Act defines the producer in relation to a cinematograph film or sound recording to be a person who takes the initiative and the responsibility for making the work. Further it is the author of the work who shall be the first owner of the copyright therein as per Sec.17 of the Act.
25. A cinematograph film is a work of visual recording and, includes a sound recording accompanying such visual recording and cinematograph shall be construed as including any work produced by any process analogous to cinematography including video films as defined U/s 2(f) of the Act. In Indian Performing Rights Society Vs Eastern Indian Motion 19 Com.O.S.No.1138/2022 Pictures Association reported in AIR 1977 SC 1443 the sound track which is associated with the film is also held to be a cinematograph film under the inclusive limb of the above definition.
26. Copyright in case of a cinematograph film is defined U/s 14(d) of the Act to mean the exclusive right -
(i) to make a copy of the film including -
(A) a photograph of any image forming part thereof; or (B) storing of it in any medium by electronic or other means
(ii) to sell or give on commercial rental or offer for sale or for such rental any copy of the film;
(iii) to communicate the film to the public;
27. Infringing copy in relation to a cinematographic film means a copy of the film made on any medium by any means if such reproduction, copy of sound recording is made or imported in contravention of the provisions of the Act [Sec.2(m)
(ii) of the Act]. Therefore, in so far as movie film like the one 20 Com.O.S.No.1138/2022 involved in this case, an infringing copy means copying the movie film in contravention of the Act. As per Sec.2(j) of the Act exclusive license is a license which confers any right comprised in the copyright in a work to the exclusion of all other persons (including the owner of the copyright) on the licensee or on the licensee and persons authorized by him.
28. According to the plaintiff the 1st defendant cannot act as antipiracy solution provider or issue copyright strikes in such capacity, as Ex.P17 does not provide the same. From the main objects of the 1st defendant company in Ex.P17 read with ancillary objects it is seen that the company was incorporated for having the business of developing, designing, marketing, trading, selling, distributing, licensing of computer software in the areas of commerce, industry, communication, education, health in India or abroad and act as agent, market, promote, import, export computer hardware, peripherals, spares and other related equipment; to carry on the business in development and creation of digital programs software data processing, web designing, internet, communication, electronic and related fields, medical transcriptions, multi media and 21 Com.O.S.No.1138/2022 electronic data processing; to carry on the business of analyzing, designing, developing, hosting and administering websites and portals on internet or any other similar media and provide enterprise wide solutions and system integration in the field of computer software and allied areas and also to acquire and protect and renew in any part of the world any patents, patent rights, Brevets D invention, trademarks, designs, licenses, concession and the like concerning any exclusive or non exclusive or limited right to their use, etc.
29. Dw1's evidence that though the 1st defendant is not described as an antipiracy service provider in Ex.P17 the same is implied, has remained unchallenged as no further suggestion is made to deny the said claim during his cross examination. That apart, Pw1 also admits in categorical terms that he is aware of the 1st defendant being an antipiracy solution provider. Even otherwise, in my opinion the activity of providing antipiracy solutions falls within the ambit of the object of the company to administer websites and portals on internet or any other similar media and to provide enterprise wide solution coupled with the incidental object of protection of trademark, 22 Com.O.S.No.1138/2022 designs, licenses etc. or any exclusive or non exclusive right to such use. Therefore, there is no merit in the plaintiff's argument with regard to the 1st defendant company's action being ultra vires and the judgments relied upon by him in this behalf are not applicable to the facts of this case.
30. Coming to issue proper, there is no dispute that Sri.M.G.Ramamurthy of M/s Vasushree Productions is the producer of the movie Encounter Dayanayak. He is therefore the author and the first owner having copyright in the movie, as provided U/Ss.2(d)(v), 2(uu) and 17 of the Act. Both the plaintiff as well as Dw1's client Kasturi Media are claiming through the transferees under the documents allegedly executed by the producer of the movie.
31. The plaintiff's learned counsel strongly assails Ex.D10 to D14 on the ground that they being the photocopies are not proved in accordance with law. Sec.65(a) of the Evidence Act read with Sec.66 is pressed into service in support of the same. Sec.65 of the Indian Evidence Act and Sec.66 are extracted here below for easy reference:
23 Com.O.S.No.1138/2022
65. Cases in which secondary evidence relating to documents may be given:-
Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the 24 Com.O.S.No.1138/2022 fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
66. Rules as to notice to produce:-
Secondary evidence of the contents of the documents referred to in section 65, clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:--
(1) when the document to be proved is itself a notice;25 Com.O.S.No.1138/2022
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
32. It is pertinent to note that Dw1's cross examination is limited to eliciting answers as to how a copy right strike is issued? Number of copyright strikes are required to take down the infringing video/ movie/snippets etc. and nothing in relation to Ex.D10 to D14, except suggesting that Ex.D10(a) is a fabricated document. Ex.D10(a) is a copy of Ex.D10 and Dw1 stoutly denies the plaintiff's suggestion and clarifies that financial aspects are not disclosed in this document dated 03.03.2005 produced with written statement and that he has no personal knowledge about the contents of the document.
33. Dw2 who is the Senior Marketing Manager of Kasturi Media has testified to the effect that Sri.Srinivasamurthy has lost the 26 Com.O.S.No.1138/2022 originals and as such he has produced copies at Ex.D10 to D14. Sri.S.Srinivasamurthy and Kasturi Media are not parties to the suit. Dw2 is only a witness for the 1st defendant and therefore, there is no question of expecting him to issue notice either to Sri.S.Srinivasmurthy or M/s Prasad Film Labs calling upon to produce the originals.
34. Though Dw2 admits the plaintiff's suggestion that original of Ex.D10 should have been with Kasturi Media, the same in my considered opinion is not fatal. Because nothing is elicited through Dw2 to the effect that Kasturi Media has the original agreement between Sri.M.G.Ramamurthy and Sri.S.Srinivasamurthy. In fact Dw2 states in clear terms that they only have copies of Ex.D10 to D14 and Sri.S.Srinivasamurthy has assured to trace the original of Ex.D10. Under such circumstances, the only inference to be drawn is that the original is with Sri.S.Srinivasamurthy and he has misplaced the same as stated by Dw2 in his examination in chief.
27 Com.O.S.No.1138/2022
35. In the above circumstances, Sec.65(c) read with Sec.66(6) of the Indian Evidence Act come into play. By virtue of the same the secondary evidence of the contents of Ex.D10 to D14 becomes admissible, specially when Dw2 has laid foundation in a his examination in chief itself for leading secondary evidence on these documents. Therefore, the plaintiff's objections with regard to proof and admissibility of Ex.D10 to D14 cannot be sustained and the ratio in B.N.Sampath Kumar's case relied upon by the plaintiff is not applicable to the facts of the case.
36. Ex.D10 to D14, as discussed earlier speak about the producer of the movie granting, assigning, transferring in favour of Sri.S.Srinivasamurthy exclusive world rights of television broadcasting, satellite television broadcasting, terrestrial broadcasting rights, cable television, video, video compact disc, laser disc, digital video disc, direct to home rights, internet television rights, all pay channel television rights, sub titling rights, closed circuit television rights, airborne and sea rights, state linked transmitters, AIR broadcasting rights, broadcasting of sound track on television, broadband telecasting rights, video parlour rights, songs telecasting rights, sequence / clippings 28 Com.O.S.No.1138/2022 telecasting rights and all other existing electronic visual media telecasting rights of the picture in all formats in all medias and also all future rights of innovation in telecasting the said picture and all these rights for communication to the public for a perpetual period commencing from the date of the agreement.
37. Further, under Ex.D10 Sri.S.Srinivasamurthy was also permitted to telecast the picture in full, any song, any sequence / clippings from the said picture from any or all Doordarshan Kendras / Prasar Bharati in any of its channels including on the mail national network channel and also including in any of its satellite television channels / LPTs run by them or by any agency from any part of India / World, in addition to telecasting the same in any or all private, independent and autonomous satellite television channels retransmitted through cable, wire, wireless or by any other means in part or full from any part of the world without any restrictions in the geographical area for communication to the public for a perpetual period commencing from 03.03.2005.
29 Com.O.S.No.1138/2022
38. The argument that Ex.D10 was not stamped at the time of its execution or before as required U/s 17 of the Karnataka Stamp Act in view of Ex.D10(a), in my considered opinion cannot be sustained. Because the agreement is on non judicial stamp paper printed in the year 2003 and Ex.D10(a) shows that stamp duty of Rs.200/- was paid on dated 14.11.2005 before the Senior Sub Registrar, Kengeri. Assuming that Ex.D10 was not duly stamped and therefore, eschewed, still by virtue of the letter at Ex.D11 which speaks about M/s Vasushree Productions issuing the irrevocable letter requesting Prasad Film Labs to handover the sound and picture negatives of the movie Encounter Dayanayak to Sri.S.Srinivasamurthy, it can be safely concluded that the producer of the movie had sold the exclusive rights as above in favour of Sri.S.Srinivasamurthy.
39. Both parties have produced the certificate issued by the Censor Board in respect of the movie Encounter Dayanayak. As noted in the order sheet dated 28.11.2022 the learned counsel for the plaintiff produced original theatrical release certificate and the censor certificate. Since copy of censorship certificate was already marked as Ex.D1 during admission and denial of 30 Com.O.S.No.1138/2022 documents, theatrical release certificate was marked with consent as Ex.D1(a).
40. Therefore the next question that arises for the court's consideration is whether Sri.M.G.Ramamurthy had any right to transfer exclusive internet, internet connected devices, mobile phone and mobile phone connected devices rights in favour of the plaintiff's father under Ex.P9 so as to sustain further assignment of such non exclusive right in favour of the plaintiff under Ex.P13?
41. As seen from clause 2 of Ex.P9, the plaintiff's father agreed to get transfer the five movies mentioned therein on DV Cam or any other format etc. at his own cost and it is recited that exclusive internet and internet connected devices rights, exclusive mobile phone rights and mobile phone connected devices rights have not been sold prior to this agreement and the same will not be sold in the future. The producer who happens to be the first party undertook to withdraw the movie if it is uploaded in any other website in internet other than agreement given to the 2nd party.
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42. Pw1's evidence during cross examination makes it clear that he is in the business of purchasing copyrights and displaying the content on YouTube since 2021 and knows about sale of movies and copyrights relating thereto. Even according to him, in the event of sale of movies and copyrights the producer hands over sound negatives and picture negatives to the purchaser. Admittedly, the agreement Ex.P9 does not contain recital as to who is having the custody of sound and visual negatives of the movie Encounter Dayanayak, as in the case of Ex.D10.
43. Further, having denied that the sound and picture negatives of the movie are with Prasad Film Laboratories, Pw1 claims to be not aware of as to who is in possession of the same. It therefore becomes clear that neither the plaintiff nor his father have the sound and picture negatives of the movie and Pw1 has failed to explain, how and from where his father got transferred the said picture on DV cam or in any other format. There is no proof of Pw1's father having paid any fees/charge to the person who is in possession of the sound and 32 Com.O.S.No.1138/2022 picture negatives for copying the same are getting it transferred on a DV Cam.
44. Pw1 categorically states that he has not purchased any movie directly from the producer, so far and claims to be unaware of availability of the sound and picture negatives with the concerned lab and if there is sale of copyright, the producer addressing letter to the lab informing about the same. He also claims to be unaware of the requirement of the purchaser to address a letter to the lab requesting to handover the sound and picture negatives as and when required for copying.
45. The plaintiff has not chosen to examine his father to speak about the above aspects of sale of copyright in a movie, even though he claims to be an assignee of the rights allegedly acquired by his father pursuant to Ex.P9. Ex.D4 and D5 and D10 to D14, demonstrate the procedure followed in case of transfer or assignment of copyright in a movie by the producer and they also speak about the availability of sound and picture negatives of the movie Encounter Dayanayak with Prasad Film Labs, Chennai.
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46. Dw2 is extensively cross examined only with regard to not producing the originals of Ex.D12 to D14 and, how Ex.P13 and P14 reached Prasad Film Laboratories. Dw2 is admittedly a representative of the subsequent purchaser Kasturi Media and not the producer or the transferee under Ex.D10 Sri.S.Srinivasamurthy. Therefore, he cannot be expected to know the events that transpired before Kasturi Media came into picture, as rightly argued by the learned counsel for the 1 st defendant.
47. As discussed earlier, assuming that Ex.D10 to D14 are to be eschewed as only photocopies, the burden would still lie on the plaintiff to establish that his father Sri.A.N.Jagadeesh purchased the exclusive rights under Ex.P9 and the producer had the right to transfer the same in his father's favour and whether possession of sound and picture negatives of the movie "Encounter Dayanayak" was handed over to his father pursuant to Ex.P9.
48. The original censorship certificate was returned to Dw2 as its copy was marked as Ex.D1 at the time of admission and 34 Com.O.S.No.1138/2022 denial of documents and Ex.D1(a) is the theatrical release certificate. The evidence of Dw2 that not everyone can have the original censorship certificate, is not denied or disputed by the plaintiff.
49. Under the above circumstances, it was incumbent on the part of the plaintiff to examine his father to speak about the procedure for transfer of copyrights and to discredit the documents produced through Dw2. But the plaintiff by not choosing to examine his father, according to me has withheld the best evidence that could have been adduced in the matter.
50. Ex.D10 dated 03.03.2005 shows that the producer of the movie Sri.M.G.Ramamurthy transferred all exclusive rights of television broadcasting etc., including digital video disc, direct to home rights etc and all other electronic visual media telecasting rights in all formats and also all future rights of innovation in telecasting the said picture. Mobile phone is a electronic device and therefore, the producer of the movie did not have the right to transfer the rights of exclusive mobile phone and mobile phone connected devices telecasting of the 35 Com.O.S.No.1138/2022 movie Encounter Dayanayak in favour of the plaintiff's father under Ex.P9.
51. Pursuant to the rights acquired under Ex.D10 Sri.S.Srinivasamurthy has assigned / transferred an irrevocable granted the exclusive rights as above in favour of Kasturi Media under Ex.D4. Sri.S.Srinivasamurthy who had exclusive right of displaying the movie in all formats in all medias and all or any other copyrights which are existing as on that day and any other rights that may be innovated in the future, except the theatrical rights for the entire world, assigned and transferred web based technology rights, internet rights, DTH etc. in favour of Kasturi Media and therefore, no fault can be found with such transfer. Such being the case, the principle 'Nemo dat quod non habet' has no application to the facts of the case.
52. As discussed earlier, though Pw1 admits that the producer hands over the sound negatives and picture negatives to the purchaser on sale of movies and copyrights, but has not examined his father to speak about whether sound negatives and picture negatives of the movie are with him by virtue of 36 Com.O.S.No.1138/2022 execution of Ex.P9 dated 30.07.2013 and to rebut the contents of the letters addressed by Prasad Film Laboratories. That apart, in the presence of irrevocable authorization issued to Prasad Film Labs by the producer of the movie, the claim of the plaintiff that Sri.M.G.Ramamurthy held the negative rights as shown in Ex.P9 cannot be accepted.
53. When Sri.S.Srinivasamurthy was given the exclusive right of VCD, Laser disc, DVD, Direct to home rights under Ex.D10 and Kasturi Media acquired the same under Ex.D4 in the year 2006, if at all the plaintiff's father got transferred the movie Encounter Dayanayak on DV Cam or any other format as per clause 2 of Ex.P9 and assigned rights over the same in favour of the plaintiff, such act would certainly fall within the meaning of the term infringing copy as defined U/s 2(m) of the Act.
54. For the forgoing reasons, the plaintiff's claim that he has non exclusive copyrights in respect of the movie "Encounter Dayanayak" for internet and internet connected devices, and non exclusive rights to reassign mobile phone rights and mobile connected devices, mobile applications, direct to customers 37 Com.O.S.No.1138/2022 rights cannot be accepted by any stretch of imagination and therefore, the issue for consideration is answered in the negative.
55. Issue No.2: Ex.D7 shows that the plaintiff had uploaded 39 URLs of the movie Encounter Dayanayak and the same was deleted after the 1st defendant issued copyright strikes. This document makes it clear that the 1st defendant while issuing copyright strike on 21.07.2022 had clarified that the infringed work belongs to Kasturi Media. Even in Ex.D6, reply sent to the plaintiff's notice through email it was clearly mentioned that the copyright strikes were issued on behalf of Kasturi Media and the 1st defendant had even forwarded a link containing all relevant documents.
56. Pw1's evidence would show that he is aware of the scope of antipiracy solution providers' work and states that they are engaged by those who deal with electronic media to protect their intellectual property rights and copyrights in their electronic content and he is aware of 1st defendant being an antipiracy solution provider.
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57. Ex.D3 speaks to the effect that on 20.07.2022 Kasturi Media engaged the 1st defendant's service for a period of one year to protect their content across internet and mobile platforms and to thwart illegal uploading, hosting, disseminating, sharing, copying, transferring, embedding of their content across the internet, social platforms, mobile applications etc.
58. It is relevant to note here that there is absolutely no cross examination on Dw2's evidence about Kasturi Media engaging the services of the 1st defendant as an antipiracy solution provider as evidenced from Ex.D3. Therefore, copyright strikes issued by the 1st defendant pursuant to the authorization Ex.D3 and after noticing that the plaintiff had uploaded the movie Encounter Dayanayak on his channel Angaiyalli Cine Mane on YouTube platform, an electronic visual media, cannot be classified as illegal or unauthorized strikes as sought to be canvassed by the plaintiff. Accordingly, issue No.2 is answered in the negative.
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59. Issue No.3: The plaintiff has sought for mandatory injunction against the 1st defendant to withdraw the copyright strikes so that his channel Angaiyalli Cine Mane is revived and also for permanent injunction restraining the 1st defendant from indulging in issuing unauthorized copyright strikes against him on the YouTube platform.
60. The 1st defendant specifically contends that suit is bad for non joinder of Kasturi Media and YouTube channel. As already discussed the 1st defendant is an antipiracy solution provider and issued copyright strikes on the basis of Ex.D3, the authorization issued by Kasturi Media. If mandatory injunction as prayed were to be granted against the 1 st defendant Kasturi Media can still engage some other antipiracy solution provider to issue fresh copyright strikes. Therefore, no effective relief can be granted in the absence of Kasturi Media.
61. The plaintiff has not led convincing and cogent evidence with regard to the procedure for revival of his channel by YouTube and not placed any material on record to substantiate that his channel would be revived by YouTube if the 1 st 40 Com.O.S.No.1138/2022 defendant withdraws the copyright strikes. When such is the case, issuing direction to the 1st defendant to withdraw the strikes, as prayed will not serve any purpose. Therefore, I am of the considered opinion that without YouTube being made a party to the suit, no such direction can be issued to the 1 st defendant to ensure revival of the plaintiff's channel.
62. Further the argument that if Kasturi Media was a necessary party, they could have got impleaded as an additional defendant having come to know about the pendency of the suit and adduced evidence as the 1st defendant's witness, holds no water. Because the plaintiff is the dominus litus and cannot be compelled to contest against a party against his wish as per the decisions relied upon by him (Jaspal Kaur Vs Hazara Singh reported in 1998 SCC Online P&H 1798 and Ramesh Kumar Vs Naresh Kumar reported in 2001 SCC Online P & H 761). When the 1st defendant specifically contended in the written statement that YouTube and Kasturi Media are necessary parties and had even furnished relevant documents in their reply at Ex.D6, the plaintiff has not chosen to implead them. For these reasons, Issue No.3 is 41 Com.O.S.No.1138/2022 answered in the affirmative holding that the suit is bad for non joinder of Kasturi Media and YouTube channel.
63. Issues 4 to 6: These issues relate to the plaintiff's entitlement to the reliefs claimed in the suit and therefore are taken up together for consideration, for the sake of convenience.
64. The plaintiff has claimed damages of Rs.3,50,000/- with interest at 18% p.a. from 21.07.2022. It is relevant to note that no acceptable evidence is adduced with regard to the income derived by the plaintiff by uploading snippets, movie, clippings etc., on his channel Angaiyalli Cine Mane from February 2022. Nor is there any evidence with regard to the actual loss suffered by him on account of the channel being taken of from YouTube platform.
65. Likewise, the plaintiff has failed to prove issue No.1 and there is ample evidence on record to conclude that the 1st defendant lawfully issued copyright strikes against the plaintiff uploading snippets/clippings/songs/movie Encounter Dayanayak on his channel Angaiyalli Cine Mane on YouTube using infringing 42 Com.O.S.No.1138/2022 copy. In the said view of the matter and the findings on issues 1 to 3, I am of the opinion that the plaintiff is not entitled for the reliefs sought in the suit. Accordingly the issues for consideration are answered in the negative.
66. Issue No.7: In the result, I pass the following :
ORDER Suit of the plaintiff is dismissed with cost in favour of the 1st defendant.
Issue copy of the judgment to the parties through email as provided U/o XX Rule 1 of CPC if email ID is furnished.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 3rd day of February 2023) (H.R.Radha) LXXXIV Addl. City Civil and Sessions Judge, (CCH-85 Commercial Court), Bengaluru ANNEXURE List of witnesses examined for the plaintiff:
Pw1 A.J.Shashank 43 Com.O.S.No.1138/2022 List of documents marked for the plaintiff:
Ex.P1 Office copy of legal notice dated 23.07.2022 Ex.P2 to P4 Postal Receipts Ex.P5 to P7 Track consignment receipts Company Master Data from the website of Ex.P8 Ministry of Corporate Affairs Ex.P9 Articles of agreement dated 30.07.2013 Ex.P10 Receipt dated 30.07.2013 Ex.P11 Copy of Central Board of Film Certification Ex.12 Copy of Voter ID Ex.P13 Articles of agreement dated 20.11.2021 Ex.P14 Copy of the copyright strikes Ex.P15 Email correspondence Ex.P16 Certificate U/s 65B of the Indian Evidence Act Ex.P17 Memorandum of Association Ex.P18 Articles of Association List of witnesses examined for the defendants:
Dw1 Jerry Joseph Dw2 Dinesh Kumar S.K.
List of documents marked for the defendants:
Copy of theatrical release Central Board of Ex.D1 Film Certificate Original theatrical release Central Board of Ex.D1(a) Film Certificate Ex.D2 & D3 Authorization Letters Ex.D4 Articles of Agreement Ex.D5 Letter dated 09.06.2006 44 Com.O.S.No.1138/2022 Ex.D6 & D7 Email correspondences Ex.D8 Certificate U/s 65B of the Indian Evidence Act Ex.D9 Letter of authorization Ex.D10 Copy of agreement dated 03.03.2005 Ex.D10(a) Copy of agreement dated 03.03.2005 Ex.D11 Letter dated 08.03.2005 Ex.D12 to P14 Letters from Vasushree Productions (H.R.Radha) LXXXIV Addl. City Civil and Sessions Judge, (CCH-85 Commercial Court), Bengaluru