Copyright Board
Pune Video Theaters Association vs Cinemaster on 29 August, 2001
Equivalent citations: 2002(24)PTC242(CB)
ORDER
1. This is a complaint under Section 31 of the Copyright Act (Act) by the Pune Video Theatre Association, Pune against the copyright owners 'Cinemaster' of Mumbai who are assignees of many Film producers who have assigned video copyright in various films by executing numerous agreements.
2. The petitioner is an association of video parlours operating in Pune, who have obtained licence under the Maharashtra Cinema Regulation Act. The members arc engaged in the business of exhibiting cinematographic films recorded on video tapes to the public on payment of consideration. The members cannot exhibit films unless they have lawfully obtained license to do so from the copyright owners who in this case are the Respondents. The respondents have fixed license fee as Rs. 20,000/-and Rs. 30,000/- per annum for exhibition through TV and through Projection respectively. The petitioner considers the fee exhorbitant and feel that it amounts to shutting out the films completely from the public. This petitioner submits amounts to refusal to publish and by reason of such refusal the work is withheld from the public.
3. The respondents have filed certain documents to show that they are the assignees of about 1200 films for recording and selling them in videotapes. They pay substantial sums to obtain video copyrights from the Film producers. They recover the money by issuing licenses to the Video parlours and suppling them the films. The Respondents issue licenses. After obtaining License the Licencee gets the right to exhibit the Respondents video films to the public. License is granted on payment of an annual fee. It is admitted that they are charging Rs. 20,000 and Rs. 30,000 per annum as licence fee which confer on the licencee a right to exhibit about 1200 films. About 75 per cent of the video parlours operating in the State of Maharashtra are their members. They have also submitted that at present they hold these rights for about twelve hundred films and as and when new films are produced, they obtain these rights for those films also and a member of the Association would be entitled to exhibit not only the existing films but also the new films for which they would obtain rights in future. They have also mentioned that the petitioners could become their licencees and get rights to exhibit all the films for which the Respondents are assignees. The Respondents submit that they are not refusing to allow the performance in public of the cinematographic films. The Respondents have issued Licences in hundreds and daily a large member of films in which they have videoright are being exhibited. There is no question of films being withheld from public so as to come within the purview of Section 31 of the Act. It is, therefore, prayed that the complaint may be dismissed with costs.
4. Section 31 of the Act empowers this Board to exercise the powers conferred under that section in the circumstances mentioned below :-
(i) the owner of a copyright in any Indian work should have refused to allow performance in public of that work and by reason of such refusal the work is withheld from public;
(ii) the Board has to satisfy itself that the grounds for such refusal are not reasonable;
(iii) where the Board after such enquiry as it deems fit is satisfied of the above it may issue a licence to the complainant on payment of such compensation as may be determined by it and subject to such terms and conditions as it may think fit.
5. We would now consider and examine whether the complaint satisfies all the requirements so that the Board has good reasons to exercise its powers under this section.
6. The first requirement as a precondition is that the owner of the copyright in any Indian work should have refused to allow the performance in public of the work. The Explanation below this section defines "Indian work" to include a cinematographic film manufactured in India. The refusal to allow performance in public of the work should have caused the work being withheld from the public. In this case, the grievance of the petitioners is that they are not able to exhibit video copies of the films because the licence fee charged makes it uneconomical for them to do so. The licence fee according to the petitioner is prohibitive. In view of the position stated by the respondents it is seen that they had not refused to allow the performance in public of the cinematographic films. In facts, hundreds of video parlours (including some members of the petitioners) in the State of Maharashtra are licencees of the Respondents and are exhibiting films to the public. Hence it cannot be claimed that the films are being withheld from public. The respondents are prepared to allow the works being performed by the petitioners also on payment of the licence fee which the petitioners are not willing to do. This would not therefore amount to refusal as envisaged in Section 31 of the Act. Refusal to allow means refusal to everyone and such refusal would result in the work not being published or performed. Here it is not so. The work is being exhibited by a large number of persons and it is not withheld from public so as to come within the four corners of the section. In view of this position the second condition about the Board to satisfy itself that the grounds for such refusal are not reasonable does not arise.
7. The complaint does not indicate any film by the title. It makes a general allegation that the films are being withheld. The Respondent are owners of video rights of about 1200 films and many of them, depending on the demands made by the viewers, are being shown daily by video parlours in Maharashtra and elsewhere in the country. The complainant ought to have picked up a specific film and established that it is being shut out from the public. The complaint in its present form covers all films which are the subject matter of the video rights vesting in the Respondent as also such films that may be obtained in future. Acceding to the request of the complainant would mean that a film which is yet to be made would fall in the category of unpublished films. This blanket complaint which covers all unnamed and unknown film is wholly misconceived. The complaint furnishes no ground for interference by the Board.
8. We may consider the next circumstance regarding the issue of licence. We have already held that the two essential requirements laid down by Section 31 are not present in this case. The object behind this section is to issue compulsory licence to publish, etc. of a work which the author has refused to republish, etc. and by reason of such refusal the work has been withheld from public. In other words, the licence to be issued under this section is to allow the licensee to republish or perform the work in public which is not otherwise available to enable the public to make use of the work generally and this is required to be done by the owner of the copyright. The licence asked for by the petitioners in this complaint is not of the same nature as envisaged in the section. The dominant intention is not public service but reaping more profits. The Respondents are owner of valuable rights and they are as much entitled to earn profits from it in a legitimate manner. If the Respondent withhold the films and do not allow them to be exhibited their earnings would be nil. The fact that they are making profits itself is evidence of the fact that the films are being shown to the public.
9. The petitioner has invited the Board to invoke its power and fix a reasonable licence fee for grant of licence by the Respondents. But he has failed to point out any provision in the law which confers the required power on the Board. The Board has carefully studied the copyright Act and is not able to locate any provision which gives the Board the jurisdiction to fix licence fee without invoking the power under Section 31. As discussed above the grounds for applying Section 31 do not exist,
10. In view of the above discussion none of the requirements mentioned in Section 31 are present. Films are being daily exhibited. They are not being withheld. The petitioner has not been able to name a single film which has been withheld from the public. The complaint is baseless and totally misconceived.
11. In view of the above discussion we hold that the prerequisites for the operation of Section 31 of the Act are not present in the case. The petition and complaint are dismissed with costs.