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April 20, 2009
Bombay High Court holds National Broadcaster
'Doordarshan' guilty of infringement of copyright and imposes
substantial damages
It’s not often that one finds a state-run television channel
like Doordarshan held guilty of infringement of
copyright. It’s downright rare that one finds a court imposing
‘substantive damages’ upon Doordarshan! In its order
dated March 31, 20091,
the Bombay High Court (“Court”) has inter
alia ordered the Directorate General of Doordarshan
and the other Defendants (“Defendants”) to pay
well-known documentary film-maker Anand Patwardhan (“Plaintiff”)
Rs. 1,000,000 as damages for the infringement of his copyright
in the 1975 film “Waves of Revolution” (“Suit
Film”). Ironically, the telecast rights for the Suit
Film were acquired by Doordarshan from the Plaintiff in 1975 for
a Rs. 500!
Facts of the case:
In 1975, the Plaintiff made the Suit Film on the Bihar
Movement led by Jay Prakash Narayan, a freedom
fighter, depicting the students’ revolt in the Indian state of
Bihar which led to and is stated to have been repressed by the
Declaration of Emergency in 1975 (“Emergency”).
Telecast rights for the Suit Film were sold to Doordarshan
for Rs. 500 (per telecast). The Suit Film was telecast in 1977.
In 2003, the Defendant No. 4, acting on behalf of the Defendant
Nos. 1 to 3, made a documentary film entitled “26th June
1975” (“Impugned Film”). The Impugned Film
depicted interviews of various political figures who stated
their roles at the time of and before the Emergency. As the
Bihar Movement was the necessary and essential catalyst for
the Emergency, it formed part of the Impugned Film. The
Defendant No. 4 took admittedly shots of the Suit Film from the
Doordarshan Kendra archives. The Impugned film
was telecast on June 26, 2003.
The Plaintiff, suing for an injunction restraining the
Defendants from screening the Impugned Film and damages, alleged
that whilst he followed a secular democratic ideology,
as was brought out in the Suit Film, the ideology of the persons
shown in the Impugned Film was the “Hindutva Ideology”
and therefore, the act of infringement additionally constituted
defamation as the Plaintiff’s friends and acquaintances believed
that he had renounced his ideology resulting in lowering of his
status and tarnishing of his public image leading to public loss
of face and mental trauma.
Judgment:
As part of the proceedings and on the request of the parties,
the Court viewed both, the Suit Film and the Impugned Film, in
its entirety as also specific parts thereof.
The Court inter alia found that portion of the Impugned
Film depicting the Bihar Movement had entirely been
copied by the Defendant No. 4 from the Suit Film. The Defendant
No. 4 was aided by the Defendant Nos. 1 to 3. Even though this
part formed only 86 seconds of an approximately one hour long
film, the Court, held that the Defendants had, though not
willfully but callously, infringed the Plaintiff’s copyright.
The Court found, based on the documents produced before it, that
the only right granted to the Defendants was the right to
telecast the Suit Film on payment of royalty for each telecast.
As use of the Suit Film by the Defendants was contrary to the
written agreement between the parties, the Court held that the
Defendants had distorted and mutilated the Suit Film and
broadcast the same by breach of trust.
However, the Court found that whilst the Plaintiff had been able
to establish infringement of copyright, he had failed to show
how such infringement had damaged his reputation and therefore
held that the Plaintiff had not suffered any trauma or mental
anguish and therefore, the Defendants were not guilty of
defamation.
Interestingly, when it came to the extent of damages, the Court,
whilst appreciating that both the Suit Film and the Impugned
Film were not commercial films, noted that exemplary damages as
claimed by the Plaintiff ought not to be granted. However, as
the Plaintiff was the only film-maker and photographer who had
cinematographically captured the Bihar Movement, the
Court held the Plaintiff entitled to ‘substantive damages’.
Analysis and implications:
In this matter, the Court has delved deep into the realm of
copyright law including judgments set forth by various foreign
courts. The right as granted by the owner of a copyright is
sacrosanct and this judgment upholds this right even when more
than 30 years have elapsed after the creation of such copyright.
The fact that such right was upheld against no less than a
state-run television channel such as Doordarshan
reassures the owner of a copyright of that no one can be
permitted to infringe on his rights in any manner whatsoever,
howsoever minimal such infringement is.
The extent of the impact of such judgment can be seen when one
considers that in fact, the Court not only upheld the
unregistered copyright of the Plaintiff but also imposed
substantive damages on the Defendants including Doordarshan.
_____________________________
1. In Suit No. 2259 of
2004
-
Sahil Kanuga
&
Vyapak Desai
You may direct your queries or comments to the authors
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