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“COPYRIGHT INJUNCTIONS AND INDIAN ENTERTAINMENT INDUSTRY” Dissertation submitted in part fulfilment for the requirement of the Degree of LL. M SUBMITTED BY - SUBMITTED TO- JANHAVI PRAKASH TIWARY Asst. Prof. YOGESH PAI NATIONAL LAW UNIVERSITY DELHI (INDIA) 2014 DECLARATION BY THE STUDENT I hereby declare that the work reported in the dissertation thesis titled “ Copyright Injunctions and Indian Entertainment Industry” is an outcome of my own work submitted at ‗National Law University, Delhi‟, carried out under the supervision of Associate Professor Mr. Yogesh Pai. I have duly acknowledged all the sources from which the ideas and extracts have been taken. The project is free from any plagiarism issue. (JANHAVI PRAKASH TIWARY) NATIONAL LAW UNIVERSITY,DELHI DATE PLACE 2 CERTIFICATE OF SUPERVISOR This is to certify that the work reported in the LL.M. dissertation entitled “Coyright Injunctions and Entertainment Industry”, submitted by Janhavi Prakash Tiwary at National Law University, Delhi is a bonafide record of her original work carried out under my supervision. To the best of my knowledge and belief, the dissertation: (i) embodied the work of the candidate herself; (ii) has duly been completed; and (iii) is up to the standard both in respect of contents and language for being referred to the examiner. (Signature of Supervisor) Mr. Yogesh Pai Associate Professor of Law National Law University, Delhi DATE PLACE 3 ACKNOWLEDGEMENT First of all I would like to pay my sincere regards to my guide Asst. Prof. Yogesh Pai with the direction, guidance and patience of whom this dissertation saw the light of the day ,I would also thank Prof. Ranbir Singh ,Vice-Chancellor and Prof. Srikrishna Deba Rao ,Registrar ,National Law University Delhi for providing all the required resources and support. Also, the kind of support the library staff of the university has given is worth more than appreciable This acknowledgement shall remain incomplete without mentioning the contribution of my parents, Mr. Anant Prakash Tiwary and Mrs. Janlakshmi Tiwary for their unconditional support and motivation which harnessed in me the spirit of ‗ never giving-up‘ ,they stood with me always motivating me to do better . I should not forget to acknowledge the contributions given by my younger sister Shambhavi and brother Tejasvi whose insightful comments and suggestions were very helpful in deciding the fate of various important portions of this study. Other than all of those mentioned here ,there have been several people who helped me in myriad ways to build –up this work, I thank them all. JANHAVI PRAKASH TIWARY 4 LIST OF ABBREVIATIONS AC Law Reports,Appeal Cases 1891- AIR All India Reporter ALL ER All England Law Reports App Cas Law Reports,Appeal Cases,1875-1890 Beav Beaven‘s Report,Rolls Court CA Court of Appeal GLR Gujrat Law Reports IA Indian Appeals ILR Indian Law Reports IPLR Industrial Property Law Reporter Ker LJ Kerela Law Journal LJ Law Journal Reports PTC Patents and Trademark Cases SC Supreme Court SCA Supreme Court Appeals SCC Supreme Court Cases SCR Supreme Court Reports WLR Weekly Law Reports WN Weekly Notes WR Weekly Reporter 5 LIST OF CASES A. Chandrasekaran v Geetha Arts Division 2007 MLJ 1045 A. Chandrasekaran v Geetha Arts Division 2007 MLJ 1045 American Cynamid Company v Ethicon Limited 1975) 1 ALL ER 504 American Cynamid Company v Ethicon Limited 1975) 1 ALL ER 504 Barrett v Universal Island Records Ltd(2006) EWHC 1009 Bassey v Icon Entertainment Plc (1995)E.M.L.R 596 Confeti Records Ltd v Warner Music UK Ltd (2003)EWHC 1274, Dramatico Entertainment Ltd and others v British Sky Broadcasting Ltd and others [2012] eBay, Inc. v. MercExchange (2006)547 U.S 388 Educational Testing Services v. Katzman, 793 F.2d 533, 539 (3d Cir. EMI v Sky[2013] EWHC 379 Entertainment Network Ltd. Vs Supercassettes Industries Ltd AIR 2008 5114 Gertz v. Robert Welch, Inc 418 U.S. 323, 339–40 (1974). Gramophone Company of India Ltd. v. D.B. Pandey [(1984) 2 SCC 534 Haelan Lab, Inc vs Topps Chewing Gum, Inc, 202F.2d 866 at 868, (2d Cir) Hanumanprasad Tiwari v State of Maharashtra AIR 1984 Bom 34 Harisson v Haisson (2010)EWPCC 3,para 60 India T.V News Private Ltd v yashraj Films Pvt. Ltd PTC 477(Del) Indian Performing Rights Society v Aditya Pandey MIPR 2011(3) 19, Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 264 (2d Cir.2005) King Feature Syndicate Inc. V Sunil Agnihotri (1997)PTC303(Del) Loretto v. Teleprompter Manhattan CATV Corp (1982) 2E.LLR Lotus Development Corp. V Paperback Software International 740 F Supp 37. Metro-Goldwyn-Mayer Studios Inc. v Grokster, Ltd. (Grokster)(2005) 545 U.S. 913 6 Mirage Studio v Counter Feat Clothing (1991) FSR 275 at p 280-. 291 Music Broadcast Pvt. Ltd v IPRS 2011(47) PTC 587,2011(113)Bom LR 3153 Norowzian vs Arks (1998 FSR 394) Nottingham Movies Pvt Ltd. V Euronations Pvt Ltd.(1993)FSR 541 Paramount Entertainment Ltd. Vs British Broadcasting sky Ltd [2013] All ER (D) 151 . Pepsi Co. Inc v Hindustan Cola Co 2013 AIPC 240(Del) Perfect 10, Inc. v. Google, Inc., 416 F.Supp.2d 828 (C.D. Cal. 2006) Raja pocket Books v Radha Pocket books 1997(17)PTC 84, Ram Sampath v Rajesh Roshan 2009(40)PTC 78 Indian Performing Rights Society v Eastern India Motion Pictures Association AIR 1977 SC 1443 Ramesh Sippy v SMPEL Ltd 182(2011)DLT226 Salim Khan and Javed Akhtar vPuneet Prakash Mehra nd Ors C.S No. 112 of 2013 Bom Salinger v. Coting 607 F.3d 68 (2d Cir. 2010) [2010 BL 97772] Schwinn Bicycle Co. v Ross Bicycles ,Inc. 870 F.2d1176 Sony Corp. v Universal City Studios, Inc. (Betamax) 464 U.S. 417 (1984) Super Cassette Industries Ltd v Myspace Inc. MIPR 2011(2) 303 Super cassette Industries Ltd. V Hamar Television Network Pvt. Ltd 2011(45)PTC 70(Del) Super Cassette Industries Ltd. v. Positiv Television Pvt. Ltd. & Anr., 2008 (38) PTC 47 Super Cassettes Industries v Chintamani Rao 2012(49)PTC 1 (DeL) Taj Television v. Rajan Mandal (2003)F.S.R 22 Twentieth Century Fox Film Corp. v British Telecommunications Plc. (Newzbin) 2 (2011) Twentieth Century Fox Film Corporation and others v British Telecommunications (2011) Twentieth Century Fox Film Corporation and others v Newzbin Ltd, ([2010] EWHC 608 Twenty First Century Entertainment Ltd. V Sohail Maklai Ent. Pvt Ltd 2010 Bom LJ 325 Urmi Javekar Chiang v Global Broadcast News Ltd. 2008(36) PTC 377 Vikas Swaroop v Christian Colson and Ors 2008 Bom LJ 187 7 Warner Bros. Ent. Inc. v. RDR Books 575 F. Supp. 2d 513, 552 (S.D.N.Y. 2008) Winter Vs Natural Resources Defence Council 555U.S 7(2008) Yashraj Films Pvt Ltd v Blue Ray Entertainment media Ltd(2009) 42 PTC 31 Zee Telefilms Ltd Anr v. Sundial Communication Pvt Ltd & Ors, 2003 (27). PTC457 8 TABLE OF CONTENTS TITLES PAGE NO. DECLARATION BY THE CANDIDATE 2 SUPERVISOR‘S CERTIFICATE 3 ACKMOWLEDGEMENT 4 LIST OF ACRONYMS / ABBREVIATION 5 LIST OF CASES 6-8 CHAPTER-1A 9 CONTEMPORARY RELEVANCE OF THE STUDY AND INTRODUCTION 9 RESEARCH METHODOLOGY 24 STATEMENT OF PROBLEM 24 RESEARCH OBJECTIVES 25 RESEARCH QUESTIONS 25 RESEARCH HYPOTHESIS 26 RESEARCH DESIGN 26 CHAPTER-1 27 „NATURE OF INJUNCTIVE RELIEF‟-OVERVIEW AND DEVELOPMENT 27 OVERVIEW AND DEVELOPMENT 27 RELATIONSHIP BETWEEN “ COPYRIGHT”-PART OF PROPERTY 29 RIGHTS AND INJUNCTIONS-HOW MUCH IMPORTANT? WHAT EXACTLY REQUIRES FOR GRANTING „INJUNCTIONS‟? 31 THE TRADITIONAL „FOUR-FACTOR TEST‟ 32 KINDS OF INJUNCTIONS 33 CONCLUSION 35 CHAPTER-2 37 „INTERNATIONAL PERSPECTIVE‟ 37 APPROACH OF „U.S COURTS‟ IN GRANTING „DAMAGES‟ 38 APPROACH OF „U.S COURTS‟ IN GRANTING „INJUNCTIONS‟ 39 APPROACH OF „COURTS OF U.K‟IN GRANTING „INJUNCTIONS AND 46 „DAMAGES‟ „INTERNATIONAL CONVENTIONS‟ AND PRE-„TRIPS‟ POSITION 50 POST-„TRIPS‟ POSITION 52 CONCLUSION 59 CHAPTER-3 61 INDIAN PERSPECTIVE OF GRANTING „INJUNCTIONS‟ IN 61 INFRINGEMENTS IN „INDIAN ENTERTAINMENT INDUSTRY‟ „OF LITIGATION STRATEGIES….‟ 61 „INJUNCTIONS‟ IN „IDEA-EXPRESSION‟DISPUTES 64 „INJUNCTIONS-A REMEDY IN CASE OF „PERFORMER‟S RIGHT‟ AND 73 OTHER INFRINGEMENTS IN CINEMATOGRAPH INDUSTRY?‟ „INJUNCTIONS IN ASSIGNMENT AND LICENSING INFRINGEMENTS‟ 85 „INJUNCTIONS‟ IN CASES OF „FAIR-USE‟ TAKEN AS A DEFENCE 91 CONCLUSION 95 CHAPTER-4 96 INJUNCTIONS OR DAMAGES? 96 „INJUNCTIONS‟ CENTRAL TO PROPERTY RULE PROPERTY AND LIABILITY RULES 99 WHEN COURTS WILL AND SHALL NOT GRANT „INJUNCTIONS‟? 102 „DAMAGES‟ IF MORE APPROPRIATE REMEDY? 104 CONCLUSION 105 SUGGESTIONS 109 BIBLIOGRAPHY 112 CHAPTER-1A CONTEMPORARY RELEVANCE OF THE STUDY- 1.1 INTRODUCTION Indian Film industry has seen robust growth in past few years and for this reason it has been given the status of an ‗industry‘ in the year 2000.1 And many of the bollywood movies were successful in breaking the records in terms of earning but the darker side of picture is the concern for whole is none other than ‗ piracy‘ and other such copyright infringements. For instance .2quite a large number i.e 238 of ‗john-doe‘ or ‗Ashok Kumar‘ and other such injunctions were issued from the period of 2006-2013 in Indian High Courts which clearly shows that roaring number of infringements must also have taken place and so, copyright which itself is considered to be a weak protection becomes more vulnerable to such infringements. So, on one hand we see a lot more a glitzy side of bollywood and on the other hand there is a rush of litigations relating to infringement of I.P rights, breach of various contracts etc. As in the very famous case of the movie ―Slumdog Millionnaire‖ it was seen that due to the violation of the author of the story from which the script was taken the producers had to ensure their presence in the courts in place of preparing for the premier.

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