Oral Judgment:
1. This is the Plaintiffs Motion for an injunction in an action for copyright infringement in respect of 15 cinematograph films.
2. The 1st Plaintiff, Maganlal Savani ( Savani ), is a well-known litigant in this Court, always as a plaintiff. As the following order shows, he has often litigated his claims as the owner of copyright in a quite extraordinary number of cinematograph films. The 2nd Plaintiff ( IFD ) is a limited company controlled by Savani and his family. Savani says IFD holds the sole and exclusive rights and licenses in respect of several films, the 15 films in suit among them. The Plaintiffs case is that by announcing a satellite broadcast of these 15 films, the Plaintiffs copyright has been infringed.
3. A look first at the array of Defendants. The 1st Defendant, Multi Screen Media Private Limited ( MSM ), claims to be entitled to rights in respect of all 15 films. It says it has acquired valid title to the copyright in these films from one or the other of the other Defendants, and from other parties as well. The remaining Defendants, in turn, claim to have acquired rights in these films from third parties or, in some cases, directly from the producers of these films. MSM is thus concerned with all 15 films. The remaining Defendants are concerned with one or more of these films.
4. Savani and IFD say that they alone hold the complete rights, for all media and all modes, for all these films. I notice, however, that even according to the Plaintiffs, their rights are territorially restricted. The Plaintiffs do not claim to have worldwide rights necessarily for every single one of these fifteen films. I will return to this aspect of the matter presently.
5. Before me, several distinct defences are taken. The first defence, which is quickly dispensed, arises under Section 26 of the Copyright Act, 1957 and the 1992 amendment to that Act, one that came into effect on 28th December 1991. The tabulation of the 15 films in paragraph 6A of the Plaint shows that the Plaintiffs claim to the acquisition of rights dates back to 1959 (the earliest agreement). An argument was advanced that at the time of these agreements, the last of which is of 1976, the statutory period for copyright was only 50 years. The amendment to Section 26 came into force on 28th December 1991. The Defendants submission is that this amendment could not operate to extend the period of copyright protection by another 10 years. The revised statutory period of 60 years would apply to only to copyright assignment agreements entered into and executed after the date of the amendment.
6. I am unable to accept this submission. It seems to me self-evident that it is a beneficial provision. It will operate to extend by a further 10 years the copyright in any film, provided only that the copyright period had not ended on the date of the amendment. In other words, the amendment will not revive an assignment that ended before 28th December 1991, but it would certainly extend the period of any subsisting assignment by another ten years.
7. The second argument, one raised by Mr. Abdi appearing for Defendant No. 2, is that even on a plain reading, the Plaintiffs do not have full rights in respect of these 15 films. His submission is that the Plaintiffs rights are limited to television and do not extend to satellite broadcasts. He bases this submission on two grounds. He first submits that there is a decision of A. M. Sakhare J in Video Master v Nishi Productions (1998 (3) Bom. C.R. 782)in which the Court held that satellite broadcasting rights could not be said to have been assigned under the agreement that fell for consideration before that Court. Mr. Abdi submits that while this decision has been distinguished in a subsequent judgment of another Single Judge of his Court (S. S. Nijjar J) in Maganlal Savani v M/s. Khosla Enterprises and Ors., delivered on 12th August 1999, a series of judgments thereafter, and to which I will presently turn, failed to note the decision in Video Master. It is his submission that all the subsequent judgments are per incurium for this reason and that the decision in Khosla Enterprises is incorrect. According to him, there is no point of distinction between any of the subsequent cases, or this case, and the case in Video Master. That decision clearly said that the Plaintiffs were confined to the specific rights covered by their agreement and this could not be expanded to any other rights; most specifically, it could not cover rights that were unknown or part of a technology not yet invented at the time when the agreement was executed.
8. What Mr. Abdi asks is rather a lot, and to achieve this, he must be able to show not just that Video Master was not considered by subsequent authorities or that it was wrongly distinguished by Nijjar J in Khosla Enterprises, but specifically that it was binding, in pari materia in all respects and, therefore, no other Single Judge could possibly have taken any different view. When we turn to Khosla Enterprises, however, we find that Mr. Justice Nijjar directed his attention specifically to what it was that Video Master actually decided. That judgment was cited before him and is specifically referenced in paragraph 6 (internal page 8) of the Khosla Enterprises decision. In paragraph 7, Nijjar J held that the clause in question before him clearly gave the Plaintiff (Savani) sole, exclusive and perpetual copyright for the exploitation of the films. What was assigned to the Plaintiff was the right to exploit and exhibit the films in different sizes and through the medium of television. Video cassettes, VCDs and DVDs were, he held, only improved versions of exhibition: what was earlier done by spools or film reels was now being done by video cassettes and DVDs. He also held that satellite broadcasting cannot be excluded from the television rights that were granted to Savani. Even the transmission by a satellite would be included in the rights conferred by the right to exhibit the film. Since the clause in question expressly conferred all rights for the film, he concluded that there was infringement. As to the decision in Video Master, Nijjar J found it to be distinguishable. He held that the clause of the agreement before Sakhare, J was peculiar to that agreement. It spoke only of the assignment of video rights, not all rights. The Video Master Court accepted that there are several ways of communication. Each is separately divisible. Each can exist in different persons simultaneously. This proposition was accepted. Nijjar, J held that however the clause must be construed on an agreement to agreement basis, and that Video Master did not, therefore, prescribe any universally applicable norm such as would bind him in Khosla Enterprises. The decision in Khosla Enterprises was upheld in Appeal (Appeal No. 1246 of 1999, decided on 10th January 2000).
9. Then follows a decision of Dr. D. Y. Chandrachud J (as he then was) sitting singly in Maganlal Savani and Anr. v Uttam Chitra and Ors. (Notice of Motion No. 51 of 2008 in Suit No. 29 of 2008, decided on 14th March 2008)Here again, the present 1st Plaintiff had brought Suit. In paragraph 5, Dr. Chandrachud, J referenced the decision in Khosla Enterprises, and followed it. Dr. Chandrachud J also made reference to the Appeal Court order upholding Nijjar, J in Khosla Enterprises. He then referred to another decision of T. K. Chandrashekhar Das J in Maganlal Savani v Roopam Pictures (Notice of Motion No. 1481 of 2000 in Suit No. 1806 of 2000, decided on 20th June 2000)and of Kamdar J in Shemaroo Video Private Limited v Movie Tee Vee Enterprises (2006 (1) All M.R. 37).All these followed Mr. Justice Nijjar s line of reasoning.
10. It is difficult to see how I can possibly distance myself to the extent demanded by Mr. Abdi from the decisions in Uttam Chitra or Khosla Enterprises. It seems to me that these are indeed the ones that are binding, unless he is able to show that the clauses in question in Uttam Chitra and Khosla Enterprises were entirely peculiar to those agreements. In fairness, he has not attempted this.
11. There is one more decision to which I must refer, and this is the decision of S.C. Dharmadhikari J in Maganlal Savani and Anr. V M/s. Seven Art Pictures and Ors (Notice of Motion No. 241 of 2008 in Suit No. 171 of 2008, decision dated 20th September 2010).The plaintiffs there were the same as the two before me today. Their Motion, for relief in respect of four films, came to be dismissed on another aspect that arose there; however, Dharmadhikari J observed that the question of whether the agreements extended to future technologies had been covered by other decisions. Of course, this decision is before the 2012 amendment to Section 18, but it certainly addresses the question of interpretation of an omnibus assignment.
12. I come now to a more recent decision, that of Mr. Justice S. C. Gupte in Maganlal Savani and Anr. v M/s. Alankar Chitra and Ors (Notice of Motion (L) No. 169 of 2015 in Suit (L) 58 of 2015, decision dated 10th February 2015).Here again, the Court was concerned with agreements very similar to the ones that I have before me and those before the Court in Khosla Enterprises and Uttam Chitra. The same arguments that Mr. Abdi raises were specifically raised before Gupte J, viz., that those agreements must be confined to the technologies known at the time of the agreement and could not extend to technologies developed or invented thereafter. Gupte J considered this argument, and also considered the decision of a single judge of the Madras High Court in Meena Panchu Arunachalam v Sun TV. (2001 (3) L.W. 172)He also referenced the decision in Uttam Chitra.
13. I find that the arguments before Gupte J also covered the submission made in relation to second proviso of Section 18 of the Copyright Act, 1957, a point that Mr. Abdi s also energetically canvasses before me in this Notice of Motion. That Section reads:
18. Assignment of Copyright
(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof:
PROVIDED that in the case of the assignment of copyright in any future work, the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence:
PROVIDED FURTHER that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work:
PROVIDED ALSO that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such work in any form other that for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution an any agreement to contrary shall be void:
PROVIDED ALSO that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.
(Emphasis added)
14. Mr. Abdi s submission is that this second proviso, introduced by an amendment of 2012 with effect from 22nd June 2012, only gives statutory voice to that which was recognised by Sakhare, J in Video Master. Consequently, in his submission, now that the decision in Video Master has received statutory recognition, all decisions to the contrary cease to be binding. Jurisprudentially, it is impossible to accept this submission. It would amount to holding that the 2012 amendment to Section 18 operated as a retrospective over-ruling of decisions of this Court. In any case, this argument is also posited on the assumption that the agreement and contract in Video Master is exactly the same as the ones in all the cases that followed, including the present case. That, as we have seen, is not so.
15. In any case, Gupte J in Alankar Chitra rejected this submission. He held that the proviso refers to two aspects of exploitation of copyright: first, to the medium of exploitation, and second, to the mode of exploitation. He held that the medium of exploitation is television, and that the mode of exploitation is a reference to the manner in which the exploitation to be done, i.e., to all rights attached to exploitation, distribution and exhibition, both commercial and non-commercial. This is not a question whether or not I agree or disagree with any particular view. The decision of Mr. S. C. Gupte, J binds me. Merely because it did not reference Video Master is not sufficient to hold that Alankar Chitra was rendered per incurium. Alankar Chitra referred to Uttam Chitra; that judgment by Dr. D. Y. Chandrachud J referenced the decision of Nijjar J in Khosla Enterprises; and Khosla Enterprises clearly distinguished Video Master, confining it to the peculiar facts of that case.
16. This is not all. There are two further decisions, both of 10th February 2015, one in Maganlal Savani and Anr. v M. M. Moviez and Ors., (Notice of Motion (L) No. 169 of 2015 in Suit (L) No. 58 of 2015, decision dated 10th February 2015)and the other in Maganlal Savani and Anr. v M/s. Narandra Hirawat Co. and Ors. (Notice of Motion (L) No. 307 of 2015 in Suit (L) No. 59 of 2015, decision dated 10th February 2015)Both of these are short ad-interim orders in what appears to be cases substantially similar to the one at hand before me. Whether these two constitute precedent is another matter. It is sufficient to note that there has been a consistent line throughout.
17. The second proviso to Section 18(1) of the Copyright Act, 1957 speaks of restricting every copyright assignment agreement to the medium or mode that existed and was known at the time of that agreement. It does not permit the assignment to extend to future technologies, unknown at the time of the assignment. A simple example might suffice to illustrate Mr. Abdi s case. Assuming that there was a generalized and broad assignment in, say, the 1950 s or 1960 s, and which covered the full panoply of rights of exhibition, distribution, and exploitation, his submission is that this assignment could not extend, for example, to the creation of caller tunes or ring tones based on the music, dialogue or sound track of that motion picture for cell phones or any another internet-based applications, or any application or mode of use on a computer or on PC. None of these technologies were conceived at the time when the assignment agreements were executed. To hold otherwise, Mr. Abdi submits, would be an unconscionable restriction on the rights of the producer to commercially exploit his work consistent with the producer s rights as the original owner of copyright by making use of new technologies as they came into the market one by one. Nothing prevented the original assignee from going back to the producer and acquiring subsequent rights as well. It is most inequitable, in his submission, that somebody should have obtained what is clearly a right limited to the technology then known for a fixed amount, and to then leverage that fixed amount to continuously expand his rights without payment of anything further to the producer while continuously generating more profits for the assignee using the new technologies. If the consideration paid is a one-time amount, then the rights must also be confined to extant technologies. That one-time fee cannot yield an ever-expanding universe of rights across all media and modes. Not only is this unfair to a subsequent assignee, but it is an interpretation that unfairly restricts the rights of the original assignors. In a given situation, the first assignee might not allow legitimate use of the work for newer technologies and thus prevent the fullest exploitation of that work. This is not in the interest of the original assignor/producer, nor is it in the public interest, is Mr. Abdi s submission.
18. However compelling this construct of the argument may be, there are two difficulties that stand in Mr. Abdi s way. First, the amendment must, I think, be fairly read to be prospective simply because it is a restriction on what can and what cannot be assigned. It will undoubtedly govern assignment agreements executed after the date of the agreement. Whether it can be read to put a choke on agreements executed prior to the date of the amendment is debatable, at the very least. Unlike Section 26, which expands a benefit by amendment, the proviso to Section 18(1) does the reverse. It places a restriction on rights previously assigned or granted. Any such statutory restriction must be strictly construed. The second difficulty in Mr. Abdi s way, of course, is that this argument has been, though for different reasons, noted and rejected by Gupte J in Alankar Chitra. I do not see how it is possible to generally put some distance between this case and Alankar Chitra.
19. The other argument raised by Mr. Abdi is that the words shall be applied in the second proviso make it clear that the proviso also covers assignment agreements executed before the date of the amendment; and the question of application of the assignment arises only when the original assignment is either challenged or is sought to be protected, and that attempt at protection is opposed. It is then that the second proviso is to be applied . Whether or not this is correct is no longer res integra at least before me simply because the entirety of the second proviso fell for consideration before Gupte J. That judgment in Alankar Chitra must be held to have covered this argument as well. There again, the agreement in question was prior to the date of the amendment.
20. I am, for these reasons, unable to accept Mr. Abdi s submissions that the Plaintiffs should be held, as a matter of law and of interpretation of the contract, to have obtained only a limited set of rights restricted to the technologies extant at the dates of the agreements and no further, and therefore none at all in relation to satellite broadcasts.
21. I will note, in passing, the argument in equity canvassed by Mr. Abdi. It goes like this. The producer, the original owner of copyright, should not find himself short-changed and be forever kept out of exploiting his rights as new technologies for exploitation of those rights emerge. Equity demands, he says, that the rights assigned be limited to those of which the parties were aware at the time of the assignment. Anything else is an unconscionable restraint on the assignor s and original copyright owner s rights. It is against public policy, and this is evident from the amendment to Section 18(1) and its new second proviso. I will not deny that this is an attractive argument. Should a producer be held to have forever I mean the life of the copyright have assigned all his rights in, say, cell phone ringtones or caller tunes, when the assignment is of a date when cell phones, computers and the Internet were little more than the stuff of science fiction? The answer, from Mr. Daver, also in equity and equally compelling is that but for the consideration provided by the assignee, the producer may not have been able to exploit his copyright as profitably as he did; and, in some cases, may not even have been able to complete his work. It is wholly incorrect, Mr. Daver says, to look at the amounts of consideration and assess them at today s values. They may seem pitiably small to us today; but at the time when the amounts were paid, they were very substantial amounts, and if his clients paid a king s ransom for these films and this amount actually allowed the film to proceed to completion and release, then the argument in equity must surely fail. For this reason, he submits, the amended provision (the second proviso to Section 18(1) of the Copyright Act, 1957) can only ever be read to operate prospectively. I will leave this discussion here, simply because I do not see how I can enter into it in light of the decided authorities and precedents that I have referred to earlier.
22. The third line of defence is the most troubling. The Plaintiffs have seem to have proceeded on the basis that all their agreements are standardized or template agreements and that they are more or less uniform, though Mr. Davar for the Plaintiffs does accept that some of them were executed before the films in question saw their first theatrical release. What is pointed out by Mr. Dhond for Defendant No. 3 is that this assumption is wholly unfounded. He is concerned with a film called Half Ticket. The agreement in respect of this is one of those annexed (Plaint, Exhibit C , pp. 51 52).Copies of all the agreements in question are annexed to the plaint.12 These agreements, as I have noted, range from 1959, the earliest, and which is the agreement in Mr. Dhond s case 1976 (Plaint, Exhibits L1 and L2 , pp. 76 77 and 78 79).
23. A cursory look at these agreements seems to indicate that there are several points of distinction. Upto about 1969-1970, these agreements were in one particular pre-printed form. After that date, the pre-printed form seems to have altered. But even about this, there is no consistency. Mr. Dhond s case is specifically that the agreement in respect of the film Half Ticket is not an assignment at all. It is merely an agreement to execute an assignment deed at a later stage. He says this is obvious from Clause (1), (3), (5) and (7) and most of all Clause (20), which read as follows:
1. The Assignors hereby agree to assign and the Assignees hereby agree to take assignment from the Assignors the sole exclusive and perpetual copy rights of exploitation, distribution and exhibition commercial as well as non-commercial in respect of the said picture Half Ticket in 35 m.m. as well as any reduced size or sizes including the right of television and all other rights attached to such distribution, exploitation and exhibition of the said picture for the consideration of Rs.72,500/- (Rupees Seventy Two Thousand Five Hundred) payable as mentioned below for the territories of complete overseas circuit (comprising the areas specified in Clause (2) hereof) which territories are hereinafter referred to as the Contracted Territory . The price includes price of copyright and the prints and publicity materials.
13..
3. The delivery of the prints with full publicity materials as hereinabove stated shall be effected in Bombay by the Assignors to the Assignees on or before March 1960 (time being of the essence of the contract) against payment of the said price. In the event of the Assignors failure to do so, without prejudice to the Assignees all the rights arising thereby, the Vendors shall be to refund forthwith to the Assignees any deposit or advances or amounts received under this agreement with interest thereon at the rate of 9% per annum from the date or dates of the respective payments and the Purchasers shall have the option to purchase the aforesaid rights of the said picture or not on the terms and conditions and price herein, after seeing the fully completed and censored picture and the Assignors hereby agree to show the same.
5. The Assignors hereby agree and undertake that the said picture shall not be exploited or distributed commercially, non-commercially or in any other manner in the Contracted Territory either by themselves their servants or agents or otherwise and hereby agree to indemnify and keep indemnified the Assignees against such unauthorised distribution or exploitation of the said picture in the Contracted Territory. Any breach in this connection will make the Assignors liable to damages which in no case shall be less than twice the amount of the said price.
7. The Assignors hereby agree to show to the Assignees the said picture after the same is fully completed and censored and before tendering delivery of the prints and publicity materials thereof as contemplated herein so as to enable the Assignees to decide as to whether the said picture shall be passed for exhibition by the concerned authorities in the Contracted Territory or not for any reasons whatsoever and in the event of Assignees coming to the conclusion after seeing the said picture that the same is likely to be banned in any part or parts of the Contracted Territory, the Assignees will be entitled to refuse taking delivery of the prints and publicity materials of the said picture and terminate this agreement, in which event the Assignors shall be bound to refund forthwith to the Assignees any deposit or advances or amounts received under this agreement with interest thereon at the rate of 9% per annum from the date or dates of the respective payments.
20. The Assignors agree to execute the deed of assignment of the copyright in the above mentioned picture in favour of the Assignees for the territories described above, in accordance with the terms of this agreement, on the said picture being completed.
(Emphasis added)
24. Now Clause (1) and the use of the words agree to assign are to be found, as far as I can tell, in all the agreements without exception. Then there is the provision for Savani to refuse delivery, i.e., to refuse to take up the assignment. Clause (20) clearly speaks of a future assignment deed. In the later agreements however, we do not find clauses like Clause (20).
25. It may not be possible or even necessary at this interim stage to analyse each one of these 15 agreements. Since Mr. Dhond has raised the issue, I will restrict this discussion to the agreement in respect of Half Ticket for the present. It is true that Clause (1) contains the words agree to assign . It is also important to note that this agreement seems to have been made at the time when the film was under production. There are other agreements (as for example the one at Exhibit B , (Plaint, pp. 49 51)and the one at Exhibit D (Plaint, pp. 53 54) which were entered into after the film was ready . The agreement for the film Half Ticket, however, stands on a different footing. It is true that it speaks of the complete overseas circuit. But it excludes India, Pakistan, Burma and Ceylon. This is the point of distinction to which I will next turn, but in the meantime Clause (5) contains a negative covenant whereas Clause (7) contains a peculiar provision that gives the assignee the right not to take an assignment by taking delivery of the film should the assignee (the 1st Plaintiff) be convinced that it might be banned in any territory. Then, of course, there is Clause (20) and this is in no uncertain term says that the parties have agreed to execute a deed of assignment of copyright in favour of the assignee. The clause also tells us when that assignment deed is to be executed, i.e., on the picture being completed; clearly this is a reference to a future time. Therefore, Mr. Dhond submits that if, after the picture was completed, no assignment deed was executed, then no assignment whatever can be said to have ever vested in the Plaintiff.
26. Mr. Davar submits that Clauses (1) and (3) are sufficient to effect an assignment of the copyright. I do not think that is correct at all. To accept that would mean to read Clauses (7) and (20) out of the agreement altogether. In addition, Clause (6) also specifically contemplates a refusal to take up an assignment should the government not allow an export of the film. Mr. Dhond also points out that Section 18(1) specifically contemplates an assignment of copyright in future work. There was no reason, therefore, to require a separate assignment deed to be entered into at any stage. The fact that there is such a contractual provision, therefore, does not mean that the parties intended an assignment to take effect immediately. To the contrary, it clearly demonstrates a shared or common intent that the actual assignment would follow, but that the consideration for this was paid earlier. It may not be wrong to describe this agreement as a financing agreement secured by an option to Savani to take up the assignment.
27. I can understand Mr. Davar s consternation, for this appears to be the first time that the Plaintiff has in a half a century of enforcing his rights, been confronted with this submission. None of the judgments to which I have referred have noted this. It does not seem to have been placed before any Court. But there is no stopping progress, or halting Mr. Dhond s perspicuity. What he says is difficult to answer. The agreement must be plainly read. When Mr. Davar asks what it could possibly be for which Maganlal Savani paid all this money, Rs. 72,500/-, a quite substantial amount in 1959, the answer is that this was an advance consideration. In any subsequent assignment deed, no further consideration would have been required to have been paid. But I am unable to see how it can be said that copyright shifted for the defined territories from the producer to Savani under such an agreement. Clause (20) cannot be wished away like this. If what Mr. Davar says is correct, then large parts of the agreement are otiose and meaningless: Clause 7 and Clause 20 among them. If there was an assignment eo instante, there would have been no question of the assignment or Savani ever refusing to take up the assignment of copyright under any circumstances. On Mr. Davar s formulation of it, the copyright would have vested immediately in Mr. Savani upon the film having its first theatrical release. Nothing further was required to be done. This seems to me to be at least doubtful; at this interim stage, I say nothing more than that this will need proof and evidence of the parties intention at the time of final hearing of the suit. Their conduct will be relevant too; and this must be demonstrated by evidence. It seems to me axiomatic that the original assignor has, at some point, attempted to deal with those very rights that Savani claims came to him exclusively; hence this suit. Therefore, for the purposes of a prima facie assessment, what the Plaintiffs say today is insufficient to warrant an interim order in their favour.
28. There is another reason also not to accept Mr. Daver s argument and this appears from a comparison with one of the other agreements, for example, in relation to the film called Gora Aur Kala (Plaint, Exhibit B , pp. 49 50).This is an agreement of 15th January 1973. The film was ready. The transaction was for East African territories. This agreement contains no equivalent provision to Clause (20) of the agreement in respect of the film Half Ticket. It does not also appear to contain a provision exactly similar to Clause (7) of the Half Ticket agreement. Clause (6) of the agreement for Gora Aur Kala speaks of what is effectively a reversal of the copyright assignment because it then speaks of a refund of the amounts on a pro rata basis.
29. At least as far as the agreements that have Clause (20) in it, it will be difficult to arrive at a prima facie conclusion that without a formal assignment deed, there was ever any assignment of copyright in favour of the Plaintiffs. As regards the other films, the question will be whether this agreement extends to a worldwide territories or not. This is another layer of complication. Let us take the agreement in respect of Gora Aur Kala . It is not disputed that this is restricted to certain defined territories in East Africa. These are mentioned by name in the right hand box below Clause (2). This would necessarily mean that rights, irrespective of the mode or manner, in other territories outside East Africa were not assigned and any satellite transmission in, say, India, Pakistan, Bangladesh, U.S.A., Europe and so on is perfectly legitimate and the Plaintiffs can get no injunction for the asking against any such satellite transmission. Indeed, Mr. Davar does not even suggest this. He says that the satellite transmission to those territories should be restricted. How that is to be ensured, monitored, done, is not explained. This is true of many such agreements, for example, the agreement at Exhibit D is restricted to the Persian Gulf and West Indies. In fact, I notice from the plaint that there is not a single film the copyright assignment of which covers worldwide territories completely. All the agreements are territorially restricted. Many of them have exemptions for India, Burma, Pakistan, and Ceylon. Given the dates of these agreements, I will assume that the word Pakistan would include Bangladesh as well. There are others that include Canada, North and South America, U.S.S.R., Australia, China, Japan and Island. There is not a single agreement that covers worldwide rights.
30. The prayers in the Notice of Motion, however, do not make these distinctions at all. They speak of the contracted territories. The only basis on which the claim is mounted is the advertisement by MSM. There is admittedly no agreement that covers all rights globally. Indian territories have been excluded. Very many foreign territories have been narrowly or specifically defined. Only a few agreements can be said to be for the overseas circuit. Even in these, there are difficulties because the agreements for many films speak of complete overseas circuit, but exclude many foreign countries including Pakistan, Burma, Ceylon, Canada, North America, U.S.S.R. etc. For example, the agreement for the film Jab Pyar Kisise Hota Hai dated 31st March 1969 uses the phrase complete overseas circuit but excludes Scandinavia, China, Japan, all of North and South America, Russia and Australia amongst others. This is the one of those agreements that is actually not in a pre-printed form but the typed text makes these exclusions clear. Another agreement for a film called Himalaya Ki God Mein, speaks of the entire world but exclude Pakistan, Burma, U.S.A., Canada and Ceylon as well.
31. The prayers in the Notice of Motion, as I have said, do not make these clear-cut distinctions. To begin with the Plaintiffs must be able to show convincingly that there is no doubt that they have copyright in all these films for all these specific territories and that there is a case made out for an infringement of any copyright in their hands for those particular territories. An advertisement by MSM saying that it has rights to worldwide distribution and exhibition is not sufficient for the Plaintiffs to get relief at this stage. One would need much more precisely stated data and material to indicate that the Defendant s actions encroach upon rights of the Plaintiffs; and those rights must be shown to have been established. The Plaintiffs must clearly show that the advertisement by MSM encroaches upon their established rights. This is not something that can be presumed. The Plaintiffs claims may, in fact, be far more expansive than the actual rights they ever obtained, even assuming that for all these films they did acquire proper assignment (and which, as I have noted, is debatable at least at this stage).
32. I am unable to find that the Plaintiffs have, for these reasons, made out a sufficient prima facie case for the grant of the injunction sought. Their claim will need a fuller examination at the trial. It is sufficient to note that the 1st Defendant, MSM, maintains accounts of its distribution and broadcasts. The 1st Defendant will continue to do so.
33. The Notice of Motion is dismissed with a direction that the 1st Defendant shall maintain accounts till the final hearing of the Suit.
34. If the Plaintiffs are able to show that there was infringement of their copyright in a specific territory, they are at liberty to apply in any case where there is no provision equivalent to Clause (20) of the agreement at Exhibit C .