P. Thulasidas vs K. Vasanthakumari

Lakshmanan, J.—The suit was filed by the plaintiff for declaring his sole and exclusive copy of distribution, exhibition and exploitation of the

Tamil Talkie picture titled as ''BHAGA PRIVINAI'' in all dimensions, including dubbing rights of Hindi and other Indian languages or foreign

languages, Television rights, Video transfusion rights, Audio Cassettes rights etc. through out the world; for a permanent injunction restraining the

defendant and others from infringing in any manner with the plaintiff''s sole and exclusive copyright mentioned above and for a mandatory injunction

defendant and others to withdraw all the Video Cassettes produced, published and marketed for sale and surrender them into Court of the said

film. The plaintiff also prayed to direct the defendant to render true and proper account of the realisation made by them by selling the Video

Cassettes of the said film through-out country and elsewhere and direct the defendant to pay such a sum to the plaintiff as might be found payable

and for costs. The plaintiff is a Film Distributor and is having his business at Salem and branch offices at Madras and Coimbatore. He is having the

absolute and exclusive Copyright of distribution, exhibition and exploitation in many talkie pictures. The plaintiff is the absolute owner and is having

absolute and exclusive copyright of distribution, exhibition and exploitation of the film in all dimensions and other rights as mentioned above. He

purchased the above said right in Court auction sale held in the insolvency proceedings of G.N. Velumani in I.P. No. 64 of 1972 on the file of this

Court and the sale in his favour was confirmed by the Official Assignee, High Court, Madras on 25.9.1974. The plaintiff, till date is exercising all

his rights over the distribution, exhibition and exploitation of the said picture. He has leased out the distribution rights of the said picture to various

persons to various areas, permitted doordarshan Kendras to telecast the said picture in the programmes and received his royalties. None else

except the plaintiff has any title, interest or Copyright in the said picture. While so, on 17.8.1988 he came to know that the defendant herein has

produced, published and distributed Video Cassettes of the said picture for sale all over India and other places, infringing the plaintiff''s copyright in

it knowingly for loss and damages to the plaintiff unlawfully. The plaintiff submits to state that the copy right of the said picture is still with him and

he has not given any licence or consent to anyone for producing and publishing such Video Cassettes for public sale or for any other purpose much

less to the defendant. The defendant has dealt with the plaintiff''s copyright in a manner inconsistent with the right and interest of the plaintiff to their

self gain. Due to the illegal act of the defendant the value of his copyright to produce Video Cassettes or to licence to others of such right is

considerably diminished and the plaintiff has incurred a considerable loss. Therefore, the plaintiff is entitled to a decree for declaration of his

Copyright and the defendant has to be restrained by a decree of permanent injunction from infringing the plaintiffs Copyright in the said picture in

any manner and also by a mandatory injunction directing the defendant to withdraw all the cassettes distributed by them for sale in the open

market. The plaintiff has issued a lawyer''s notice on the defendant to withdraw the Video Cassettes of the said picture and to surrender the same

to him and to pay damages for their illegal act on 25.8.1988. After receipt of the said notice the defendant sent a reply dated 17.9.1988, through

the counsel, with false averments and unlawful claims. The defendant has also denied the plaintiffs rights in the said picture and claimed the rights of

the defendant as her own as if she has acquired legally. The plaintiff has also prayed this Court to conduct an enquiry in respect of the loss caused

to the plaintiff by the defendant by way of their illegal act and fix and award the damages which this Court deems proper. The plaintiff undertakes

to pay the necessary and additional court-fee for the damages fixed by this Court to be awarded to him from the defendant. The plaintiff submits

that the defendant is liable for accounting to her for unlawful gain and compensate the plaintiff for the wrongful loss caused to him. Hence the suit.

The suit was resisted by the defendant. According to the defendant what the plaintiff has acquired by auction purchase is only the exploitation

right in respect of the film in 35 mm. and nothing else. The plaintiff is not having the absolute exploitation right and exclusive copyright and he is

having only the exploitation rights of 35 mm. films. The act of the plaintiff permitting the Doordharshan Kendras to telecast the said picture is

unlawful and the defendant is taking appropriate proceedings to recover the damages. The defendant further states that the defendant released the

cassettes of the said picture only in their right to exploit their rights acquired under the agreement dated 20.8.1987 entered into with the legal heirs

of late G.N. Velumani, the producer of the picture. The defendant has not committed any act of infringement or caused any loss or damage to the

plaintiff or made unlawful gains as stated by the plaintiff. The defendant has not committed any illegal act as alleged in the plaint. The defendant has

exercised lawful rights conferred on her by the agreement dated 20.8.1987. The allegation that the defendant would have fabricated certain

documents colluding with others to substantiate their claim is false, malicious and made for the purpose of this case. The defendant has validly

entered into an agreement on 20.8.1987 with the legal heirs of G.N. Velumani, the producer of the said picture and thus acquired the copyright of

T.V. and Video rights. The defendant is not liable for accounting as they have not done any act necessitating them to give accounts to the plaintiff.

The plaintiff is not entitled to any damages. The plaintiff has no cause of action for the suit and the same is liable to be dismissed.

On the above pleadings the following issues have been framed:-

i) Whether the plaintiff is entitled to the declaration and injunction as prayed for?

ii) Whether the plaintiff is the absolute copyright holder of Tamil film ''Bhaga Pirivinai''?

iii) Whether the copyright claimed by the plaintiff includes video and television rights as alleged?

iv) Whether the plaintiff can claim copyright as per the sale certificate dated 25.9.1974?

v) Whether the plaintiff is entitled to damages as claimed, and if so, to what extent?

vi) To what relief are the parties entitled?

On behalf of the plaintiff, P.W.1, the plaintiff was examined and on behalf of the defendant one Kannappan, Manager of the defendant''s office

was examined. Neither proprietrix of the defendant nor her power of attorney agent, her husband A. Karthikeyan, was examined. On behalf of the

plaintiff Exs.P 1 to P 41 and on behalf of defendants Exs.D 1 to D 5 were marked. Two Video Cassettes were marked as M.Os.1 and 2.

Issue Nos. 2, 3 and 4:- These three issues can conveniently be clubbed together. According to the plaintiff he is the absolute copyright holder of

Tamil film ''Bhaga Pirivinai'' and is having the absolute and exclusive copyright of distribution, exhibition and exploitation of the picture in all

dimensions including dubbing rights of Hindi and other Indian languages, television rights, i.e., to permit telecast in television, Video transfusion

rights, Audio cassette rights all over the world by virtue of his purchase in public court auction sale held in the Insolvency Proceedings of G.N.

Velumani in I.P. No. 64 of 1972 on the file of this Court and the sale in his favour was confirmed and certified by the Official Assignee of High

Court, Madras, on 25.9.1974. In this context it is useful to refer to the proceedings in I.P. No. 64 of 1972 and the order passed by this Court

thereon. That Insolvency petition was filed by G.N. Velumani (Debtor) under Sections 10, 11, 14 and 15 of the Presidency Towns Insolvency

Act, 1909. According to the petitioner he is indebted to various persons in and around the City of Madras and has incurred the said debts from

various persons for the purpose of his business, viz., cine film production which he was carrying as a sole proprietor. The petitioner further states

that a few of his creditors filed suits and obtained an order of interim attachment of his house property subject to mortgages and the said suits are

pending. The other creditors such as Raja Rajeswari pictures at Tiruchirappalli and Shanthi Pictures at Madras were also threatening to take court

action against the petitioner for recovery of their dues. In spite of his endeavours he was not able to make up the losses and there is absolutely no

other source for him to settle the heavy dues and hence he was forced to take this course of action in order to get him adjudged as an insolvent by

this Court. Thus the petitioner filed the above Insolvency petition to adjudge him as an insolvent and order the vesting of his estate in the Official

Assignee for being administered in a regular manner. On 19.7.1972 this Court passed an order adjudicating G.N. Velumani as an insolvent and

ordered vesting of all the estate and effects with the Official Assignee of this Court and file in Court a schedule of his affairs together with a copy

thereof and was also permitted to apply for his discharge within eighteen months from that date. The order passed by this Court adjudicating G.N.

Velumani as an insolvent is marked as one of the exhibits. Pursuant to the vesting of the estates with the Official Assignee, the Official Assignee

brought the pictures produced by the said insolvent for public sale. It is seen from Ex.P.27 that the sale was in respect of the Negative rights of the

Tamil 35 M.M. Motion picture, viz. ''Bhaga Pirivinai'' and five other pictures. It is mentioned in the auction notice that the pictures will be sold in

separate or convenient lots and the negative rights sold is subject to the existing distribution rights. The Official Assignee by his proceedings No.

105/74-B-2 I.P. No. 64/72 dated 25.9.1974 issued a Sale Certificate in favour of the plaintiff. It is useful to extract the Sale Certificate for better

understanding of the case:-

SALE CERTIFICATE

This is to certify that the Negative Rights of 35 M.M. Tamil picture ""BHAGA PIRIVINAI"" produced by G.N. Velumani, sole proprietor M/s.

Saravana Films subject to the existing Distribution Rights has been sold to M/s. Thulasi Films - having office at No. 362, Trichy Main Road, Gugai,

Salem-6 and that they are the absolute owners of the said negative rights with effect from 25.9.1974.

Thus he became the absolute owner of the Negative rights with effect from 25.9.1974. On the same day, the Official Assignee issued another letter

to A.V.M. Laboratory Service, Madras-36 under Ex.P6 stating that the Negative rights of the Tamil picture ""Bhaga Pirivinai"" produced by M/s.

Saravana Films have been sold to the plaintiff and requested the A.V.M. Laboratory to hand over the negatives of the said picture to the plaintiff.

Under Ex.P.7, the Official Assignee on the same day addressed another letter to the plaintiff with reference to the sale of the Negative rights of the

Tamil picture Bhaga Pirivinai in their favour and also permitted the plaintiff to apply to the proper authorities and get the said picture re-censored as

and when necessary. The Sale Certificate under Ex.P5 was also enclosed along with the letter dated 25.9.1974 under Ex.P7 the Censor

Certificate issued by the Central Board of film censors in respect of Tamil film Bhaga Pirivinai in the name of the plaintiff with covering letter was

also marked, as Ex.P9 in this suit. The plaintiff has also entered into an agreement with one A. Balakrishnan of Nandanam, Madras-35 transferring

the T.V. rights of the above said picture for a period of five years for the territories of the entire India, except Tamil Nadu State Television

Stations. The said agreement was marked as Ex.P 10. Ex.P11-A is a covering letter issued by Doordarshan Kendra, Madras-5, enclosing a

cheque for Rs. 15,000/- in respect of the film, Bhaga Pirivinai. Ex.P12-A is another letter written by Doordarshan Kendra, Government of India,

Bangalore, dated 6.5.1987 addressed to the plaintiff enclosing a Royalty Form for the Telecast of Song Sequency of their film Bhaga Pirivinai. The

plaintiff was requested to sign on page 2 of the Royalty Form and resubmit the same to the Kendra by return of post to enable them to arrange for

early payment. Ex.P12-E is again a letter dated 20.5.1988 sent by the Directorate General, Doordarshan Kendra, New Delhi, addressed to the

plaintiff informing the plaintiff that the film ""Bhaga Pirivinai"" will be scheduled for National Telecast as per their programme exigencies. Ex.P3 is the

receipt in original bearing No. 1035 issued by the Official Assignee, High Court, Madras, dated 12.9.1974 for Rs. 16,875/- being 25% deposit

for the Negative Rights of Tamil picture ""Bhaga Pirivinai"". Ex.P 4 is again another original receipt issued by the Official Assignee, High Court,

Madras, bearing No. 1139, dated 25.9.1974 issued in favour of the plaintiff for Rs. 50,625/- being the balance of purchase price of Negative

rights of picture ""Bhaga Pirivinai"". Ex.P8 is the letter sent by the plaintiff to A.V.M. Studios sending the edited negatives pursuant to the direction

given by the Official Assignee, High Court, Madras, in I.P. No. 64 of 1972 dated 25.9.1974. The plaintiff has agreed to pay the charges due for

the above work immediately on receipt of their bill. A.V.M. Studio has also made an endorsement in the bottom of the letter receiving the above

negatives. Ex.P11-B is again a letter sent by Doordarshan Kendra, Bangalore to the plaintiff, dated 5.12.1986 enclosing a cheque for Rs. 250/-

for the programme telecasted on 4.11.1986 (Bhaga Pirivinai). Ex.P11-C and E are letters by Doordarshan Kendra, Madras and Bangalore

respectively, enclosing cheques for Rs. 2,325/- and Rs. 250/- in respect of programmes telecasts on 9.3.1987 and 5.5.1987 respectively. Ex.P

12-B is a letter sent by Bharat Sarkar, New Delhi, dated 12.8.1987 requesting the plaintiff to send his offer of the said feature film and return the

same to the Directorate, duly filled in. Ex.P12-C is another letter sent by the Government of India, Directorate General, Doordarshan, New Delhi,

to the plaintiff acknowledging their letter for telecast of feature film entitled ""Bhaga Pirivinai"". It is stated in that letter that the offer of the plaintiff has

been noted in their ''Register of Feature Films offered'' at Sr. No. 51 dated 5.10.1987. Ex.P12-d is the letter Doordarshan Kendra, New Delhi,

dated 19.5.1988 informing the plaintiff that a song had been telecasted from that Kendra on 11.1.1988. Exs.P 13-A to C are three letters written

by the plaintiff to the Director General, Bharat Sarkar, Doordarshan, New Delhi, and Madras, dated 17.9.1987, 2.11.1987 and 31.5.1988. The

plaintiff had enclosed the application for telecasting the picture in All India Television under Ex.P13-A. Under Ex.P13-B the plaintiff has brought to

the notice of Doordarshan Kendra, New Delhi, that they are the true right holders to telecast the picture in Doordarshan anywhere in India for the

picture in question and that Mr. Viking from Bombay, who applied for telecasting the said picture in the Delhi Doordarshan, has no right at all to

telecast the picture anywhere in India. It was also brought to the notice of Doordarshan that the picture has already been telecasted in Madras

Doordarshan on 27.7.1986 and the plaintiff had received two cheques dated 21.8.1986 for Rs. 15,000/- and supplementary payment of Rs.

2,325/-. Ex.P16 is again a letter from Doordarshan Kendra, Madras-5, dated 12.4.1988 acknowledging the receipt of three No.s ''U''matic VCR

tapes, containing Tamil Feature film ""Bhaga Pirivinai"" from the plaintiff on 12.4.1988. Ex.P18 is the notice issued by the learned counsel for the

plaintiff to the defendant requesting the defendant to withdraw all the Video Cassettes they have published and marketed for sale all over India and

to surrender the same to the plaintiff and to pay damages of Rs. 1,00,000/- immediately after the receipt of the notice. Ex.P19 is the reply sent by

the defendant denying the allegations. Ex.P23 is the offer made by the plaintiff for the grant of Video Rights in favour of one P.R.N. Movies.

Ex.P24 is the offer made by one P.R.N. Movies to the plaintiff for the picture in question. Ex.P26 is the letter dated 8.2.1989 sent by

Doordarshan Kendra, Madras-5, enclosing a cheque for Rs. 4,250/- in respect of a song. Ex.P29 is the original Censor Certificate handed over

by the Official Assignee to the plaintiff. Ex.P30 series (18 documents) will show how the plaintiff has dealt with the picture with various third

parties. Exs.P31 and 32 series will also show the other transactions and acts by the plaintiff as a Copyright owner. Ex.P33 is the letter dated

12.8.1985 sent by the plaintiff to the defendant disputing the alleged right of the defendant in the said picture and requesting the defendant not to

give indulgence in dealing with the picture. Ex.P35 is the copy of the affidavit filed by A. Karthikeyan, power of attorney agent of the Proprietix of

the defendant. He has stated in that affidavit that he has so far produced 175 video cassettes of the picture ""Bhaga Pirivinai"" in terms of the

agreement dated 20.8.1987 itself to the persons mentioned in the affidavit and that out of the sales he has made a profit of Rs. 2,450/- only.

Ex.P36 is the notice sent by the plaintiff''s counsel to the defendant''s counsel dated 22.3.1989 stating that the defendant has not surrendered all the

cassettes and that the plaintiff will be constrained to move the court for appropriate reliefs apart from moving the court for contempt of court.

It is seen from the above exhibits marked and proved by P.W.1 that the plaintiff has been all along dealing with the picture ""Bhaga Pirivinai"" as

an absolute owner. Per contra it is contended by the learned counsel for the defendant that the plaintiff is not having the absolute exploitation right

and exclusive copyright and that the plaintiff is having only the exploitation rights of 35 mm films. It is further contended that the defendant released

the cassettes of the picture only in their right to exploit their rights acquired under the agreement dated 20.8.1987 entered into with the legal heirs

of G.N. Velumani, the producer of the picture. The defendant has not committed any act of infringement or caused any loss or damage to the

plaintiff or made unlawful gains as stated in the plaint and also in the evidence of P.W.1.

It is useful to refer the following two Dictionaries to understand and to appreciate the arguments of the learned counsel for the plaintiff in regard

to the word ""Absolute"":

i) Biswas:An Encyclopaedic Law Dictionary, 1979 Edition, defines the word ""ABSOLUTELY"" in the following terms:

ABSOLUTELY. If any independent meaning can be given to ""absolutely"" it must be ""unconditionally"". Re Pickworth, 68 LJCh 328. The ordinary

meaning is ""without condition or limitation"". And it is commonly used with regard to vesting as meaning ""indefeasibly"". Re Thompson, Rhoden v.

Wicking, 1947 W.L.R. 60 (67).

ii) Legal Thesurus by William C.Burton defines the word ''Absolute'' as under:-

ABSOLUTE (Complete), adjective, absolutus, blanket, comprehensive, downright, entire, exhaustive, final, finished, full sheer, total, unbounded,

unconditional, unconstrained, unlimited, unqualified, unreserved unrestrained, unrestricted, unstinted, utter, whole, without qualification.

It is seen from the Sale Certificate issued by the Official Assignee under Ex.P5 that the picture produced by G.N. Velumani, Sole Proprietor has

been sold to M/s. Thulasi Films/plaintiff and that they are the absolute owners of the said Negative Rights with effect from 25.9.1974. Thus it is

seen that the plaintiff has become the absolute owner by virtue of his purchase in public Court auction. Once the plaintiff, has become the absolute

owner it is open to him to deal with the picture in any manner he likes. The plaintiff has also explained in detail in paragraphs 4 to 6 of the plaint

how he has acquired the Copyright and how he is exercising all his right over the distribution, exhibition and exploitation of the picture. In exercise

of his rights he has also leased out the distribution rights of the said picture to various persons to various areas, permitted Doordharshan Kendras

to telecast the said pictures to various persons to various areas, and to telecast the said picture in the programmes and received the royalties. Thus

the plaintiff has proved his absolute right over the picture ""Bhaga Pirivinai"" beyond any reasonable doubt. In my opinion no one else except the

plaintiff has any title, interest or Copyright in the said picture ""Bhaga pirivinai"". The only contention by the defendant is that they have obtained

Video, Television rights from the legal heirs of G.N.Velumani in the year 1987. According to the defendant they entered into an agreement on

20.8.1987 with the legal heirs of G.N.Velumani, producer of the picture and thus acquired the Copyright of the Television and Video rights.

In support of his contention the defendant has marked Ex.D.1, the agreement entered into in Madras on 20.8.1987 with the legal heirs of

G.N.Velumani. In my opinion the contention of the defendant is without merit. [The discussion relating to evidence is omitted:

Ed.].................................

The evidence extracted above, of D.W.1 will not also help the defendant. D.W.1 himself is not sure when the document Ex.D 1 was signed and

where it was signed etc. In my view, it is a fabricated document to set up a rival claim of copyright against the plaintiff. Even by setting up a

document under Ex.D 1 the defendant has miserably failed to prove the same. Hence in opinion, Ex.D 1 cannot be relied on to substantiate the

alleged copyright claimed by the defendant.

To establish his case that the plaintiff is the absolute owner and having absolute and exclusive copyright of distribution, exhibition and

exploitation of the picture in all dimensions including dubbing rights of Hindi and other Indian languages, Television rights, Video transmission rights,

audio cassette rights all over the world, etc., the counsel for the plaintiff invited my attention to some of the provisions made under the Copyright

Act.

Section 2(f) of the Copyright Act, 1957 defines the ""cinematograph film"" as under:

Cinematograph film"" includes the sound track, if any, and ""cinematograph"" shall be construed as including any work produced by any process

analogous to cinematography;

S. 13(1) of the Copyright Act, 1957, is as follows:-

Works in which copyright subsists:-

(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of

works, that is to say,-

(a) Original literary, dramatic, musical and artistic works;

(b) cinematograph film; and

(c) records

S. 13(1) of the Copyright Act, 1957, lays down that subject to the provisions of this Section and the other provisions of this Act, copyright shall

subsist throughout India in Cinematograph films. The Act does not contain an exhaustive definition of the expression ""cinematograph film."" In S.

2(f), cinematograph film is defined to include the sound track, if any..

The term ""cinematograph"" is to, be construed as including any work produced by any process analogous to cinematography which consists of a

series of photographs projected upon a screen in such a rapid succession as to give the illusion of motion. In the case of sound films, the visual

representation is accompanied by an audible representation of a dialogue, music, etc., so arranged as to synchronise with the visual representation

on the screen.

S. 14(1)(c) of the Copyright Act defines the meaning of Copyright:

14(1)(c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely

(i) ...

(ii) to cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public;

Copyright means all the rights conferred by the Act upon its owner in respect of his literary, dramatic, musical or artistic work or in respect of a

cinematograph film or record. It does not essentially mean a right to do something, but only the right to exclude others from the doing of those acts

and things which are expressly mentioned in the section. Chapter XI deals with the infringement of Copyright. S. 51 deals with when a copyright

infringed.

The acts restricted by the copyright in the case of a cinematograph film are

(i) making a copy of the film;

(ii) causing the film, in so far as it consists of visual images, to be seen in public and, if so far as it consists of sounds, to be heard in public;

(iii) making any record, embodying the recording in any part of the sound track associated with the film by utilising such sound track;

(iv) communicating the film by radio-diffusion.

S. 51(b) of the Copyright Act enacts that copyright in a work shall be deemed to be infringed when any person:-

(i) (1) makes for sale or hire, or

(2) sells or lets for hire, or

(3) by way of trade displays for sale or hire, or

(4) by way of trade offers for sale or hire, or

(ii) distributes either:-

(1) for the purpose of trade, or

(2) to such an extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public, or

(iv) imports (except for the private and domestic use of the importer) into India,

any infringing copies of the work.

The expression ""infringing copy"" has the meaning assigned to it by S. 2(m) of the Act, but the Explanation to the Section carves out an exception,

since it lays down that, for the purposes of this Section, the reproduction of a literary, dramatic, musical or artistic work in the form of a

cinematograph film shall be deemed to be an ""infringing copy."" In other words, the definition of the expression ""infringing copy"", given in the

Explanation applies only to the reproduction of a work in the form of a cinematograph film. Indeed, such an exception is provided also by the

definition in S. 2(m) itself.

Under S. 14(1)(c) of the Copyright Act, in the case of cinematograph films, copyright means the exclusive right to do or authorise the doing of

any of the acts mentioned in sub-clauses (i) to (iv) of clause (c). It is an infringement of copyright to do any of those acts. While the person who

makes a film may infringe upon the rights of others, he may, at the same time, create independent rights in himself which others may infringe, either

by copying of one or more of his individual photographs, or by copying the film, or by publicly presenting the film by cinematograph. Copyright in

the film obviously exists in it as a series of photographs, and hence it is an ""artistic work"". Copyright may also exist in the film as a dramatic work,

where the film is based upon the arrangement of scenes which includes acting.

In support of his contention that Cinematograph rights includes Video rights the learned counsel for the plaintiff invited my attention to the

decision of our High Court reported in Entertaining Enterprises, Madras and Others Vs. State of Tamil Nadu and Another, in which a Division

Bench of our High Court held as follows:-

8......... It is well established that a legislative entry in any of the lists should be given the widest amplitude and it is not possible to give a restricted

meaning to a legislative entry used in the Constitution. Entry 33 of List II of Schedule VII uses the expression ""cinema"". The expression ""cinema

being a legislative head of power should receive an interpretation of the greatest amplitude and cannot be restricted to a particular apparatus.

Notwithstanding the difference in the mechanism used, in one case magnetic tapes are used which are not nitrocellulose base and the other with the

VCR (magnetic tapes base), the magnetic tapes used in the VCR have the result of producing the same audio visual effect on a common viewer,

and therefore, the television and VCR should be taken to have come within the scope of the expression ""cinemas"" occurring in Entry 33 of List II.

On a due consideration of the rival contentions put forward by the parties, we are of the view that S. 9(2) is not a mere incidental

encroachment on the entry ""copyright"" falling in List I, but it amounts to an addition to the provisions of the Copyright Act and therefore, it falls

outside the permitted limit of encroachment and as such, it should be taken to be ultra vires. Though the learned Advocate General states that S.

9(2) is intended to ensure increase in revenue to the State, we cannot agree that S. 9(2) is in any way connected with the collection of

entertainment tax. A reading of S. 9(2) will clearly show that it has nothing to do with the levy, assessment or collection of entertainment tax. The

said section merely enables the owner of the copyright to stipulate conditions for parting away with the so-called copyright in the video films and it

does not provide for any improvement of the State revenues, for, insisting on a consent letter from the owner of the copyright does not in any way,

improve the State revenues. It cannot be disputed that S. 9(2) proceeds on the basis that the owner of the cinematograph film which has been

recorded in the VCR is also a owner of the copyright in the video film. S. 2(d) of the Copyright Act, 1957 defines an author in relation to a

cinematograph film, as the owner of the film at the time of its completion. S. 2(f) of the said Act defines a cinematograph film as including any work

produced by any process analogous to cinematography.

In Balwindar Singh Vs. Delhi Administory and Others, a Division Bench of Delhi High Court held that Video and television both are cinematograph

and that both are jointly and severally apparatus for the representation of moving pictures or series of pictures. The Delhi High Court further held

as follows:-

The first contention on behalf of the petitioner is that the video and the television cannot jointly and severally be regarded as cinematograph within

the meaning of S. 2(c) of the Cinematograph Act. they conceded that the television may fall within the meaning of S. 3(1) of the Telegraph Act but

contended that a video is not even a telegraph. We are not in agreement with learned counsel for the petitioner. A Video is an appliance which is

capable of use of transmission of signs, signals, images and sounds and, therefore, would fall within the ambit of the term ""telegraph"". A television

likewise is an appliance capable of use for reception of signs, signals, writing images and sounds and so would fall within the definition of telegraph.

Likewise both the articles would be cinematograph whether jointly and severally within the meaning of S. 2(c) of the Cinematograph Act. The

definition is an inclusive definition and not an exhaustive definition. We reject the argument that the two are not apparatus. These are jointly and

severally apparatus for the representations of moving pictures or series of pictures. Therefore, the provisions of the Cinematograph Act are clearly

attracted.

In Dineshkumar Hanumanprasad Tiwari Vs. State of Maharashtra, learned single Judge of Bombay High Court held as follows:-

When a VCR is used for playing pre-recorded cassettes of movies on the TV screen, it is certainly used as an apparatus for the representation of

moving pictures or series of pictures and comes within the definition of ""cinematograph"" as defined under the Cinematograph Act. But in a fast

developing society, it would not be correct to confine the intention of legislature to the meaning attributable to the word used at the time of

enactment. In a scientific age, the Legislature must be presumed to be aware of an enlarged meaning of the word which it may attract with the

advance of science and technology. There is no reason as to why the word ""apparatus"" used in the definition of ""cinematograph"" be given restricted

meaning so as to mean only a sheet or ribbon of celluloid or the like prepared with the coating for ordinary photographs. On the other hand, any

apparatus, as long as it is capable of being used for representation of moving pictures or series of pictures notwithstanding whether it is used with

the aid of magnet tapes, would be an ''apparatus'' within the meaning of the word ""cinematograph"" as defined under the Act. In my view, definition

of ""cinematograph"" is wisely couched in widest possible terms and as long as any apparatus which answers given in the definition of

cinematograph"" must be held as cinematograph and any place wherein exhibition is given by means of cinematograph, must fall within the mischief

of cinema.

Thus, it is seen that the plaintiff was given absolute negative rights and it is open to him to exercise his right of distribution, exploitation, and

exhibition of the film in question. In my opinion a reading of the exhibits filed on behalf of the plaintiff and particularly the sale certificate given by the

Official Assignee of the High Court, Madras, shows prima facie that all the rights relating to the negatives of the films were conveyed to him and

there was no reservation with regard to the films of any other or video rights. Hence, in my opinion, the plaintiff is entitled to make copies from the

films of 35 mm. gauge, 16 mm. gauge and also telecast the films in Televisions. It is also open to him to enjoy the absolute negative right given by

the Official Assignee in any manner as he likes. The rights of the plaintiff to use the negative right is absolute, blanket, comprehensive, exhaustive,

unbounded, unconstrained, unlimited and unqualified. Hence I am of the opinion that as per the Sale Certificate, all rights pertaining to the picture

and as claimed by the plaintiff were conveyed to the plaintiff by the Official Assignee and nothing was reserved; consequently, the plaintiff alone will

have the right to deal with the film Bhaga Pirivinai in any manner he likes and no one else other than the plaintiff has the negative right of the film

Bhaga Pirivinai"".

However, at the time of argument it was contended by Mr. Prabhakara Reddy, that the negative right does not include other rights such as

T.V. Rights, etc. and that Ex.P5 cannot be given any dubbing right on the plaintiff. It was further contended that the Negative rights can only mean

right of exploitation of 35 mm. only. I am unable to accept the said contention in view of the findings given above and hence I reject the contentions

raised by the learned counsel for the defendant. However, it was argued by Mr. Prabhakar Reddy that since G.N.Velumani was discharged from

insolvency the legal representatives are entitled to deal with the picture. I see no substance in the said contention of the learned counsel for the

defendant. In this context it is useful to refer to the order passed by this Court on 15.3.1976, which is as follows: ""None of the Creditors has filed

counter. In view of the report of the Official Assignee, this petition for discharge is ordered.

It is also useful to refer the report of the Official Assignee in this context.

The public examination of the insolvent was held in March, 1974.

Notice of this application was sent to the creditors on 21.2.1976. No notice of opposition has been received from any of the creditors.

The insolvent filed Application No. 272 of 1974 for grant of discharge. The said Application was dismissed by this Hon''ble Court by order

dated 12.8.1974.

Since the adjudication has been pending for over three-and-a-half years and since there is no chance of further realisation of assets in the estate,

the insolvent may be granted discharge.

It is seen from the report filed by the Official Assignee, the house at No. 28, Bheemanna Mudali Street, Alwarpet, Madras-18, was sold in public

auction for a sum of Rs. 1,62,000/-, the dry lands at Naithalpuram village fetched a sum of Rs. 8,701/- at a public auction, the negative rights of

the pictures Bhaga Pirivinai, Naanal, Idhu Satyam, Selva Magal, Ethiroli and Panchavarnakili were sold for a total sum of Rs. 1,09,700/-. One

secured claim was admitted in a sum of Rs. 1,16,364-47 and was paid in full from and out of the sale proceeds of the house belonging to the

insolvent. Two preferential claims were admitted in a total sum of Rs. 2,31,842-61.

Per contra, the learned counsel for the plaintiff submits that because of the discharge order passed by this Court, the Properties of the insolvent

which have already been vested with the Official Assignee will not revert back to the insolvent. Learned counsel in support of his contention drew

my attention to S. 45 of the Presidency Towns Insolvency Act, 1909, which states that once a particular property has become vested in the

Official Assignee, there cannot be any automatic re-vesting of it in insolvent on his discharge and therefore a sale of that property by the insolvent

after his discharge and without Official Assignee''s permission does not pass any good title to the purchaser. In this connection the decision cited by

the learned counsel for the plaintiff reported in Vijiarangam Naidu v. Narayanappa 1946 Mad 371 = 1946 Mad WN 342 can be easily referred

to. Learned judge, Bell, J. in following a Calcutta case reported in Tarak Das Dhar v. Santhosh Kumar Malik 1937 ILR 2 Cal. 386 held that the

property did not revest in the insolvent and he had no right to sell it without the permission of the Official Assignee. S. 44(2) of the Provincial

Insolvency Act, 1920, while dealing with the case of effect of an order of discharge provides that the order of discharge frees insolvent from

liability for all debts provable under Act but does not free his property from such liability. The direct purpose of an order of discharge is to enable

insolvent debtor once again to indulge into business activities freed from liability to pay his prior debts. It is for this reason that in sub-section (2) of

S. 44, it is provided that the order of discharge shall release insolvent from all debts provable under the Act. In other words, the effect of S. 44(2)

of the Provincial Insolvency Act, 1920 does not extinguish altogether the claims of the creditors whose claims are provable under Act but to limit

their remedy for purpose of realizing same from assets vested in Court or Receiver under S. 28. In this context it is useful to refer the decision

reported in K. Subramania Pillai Vs. A.V.S.V. Sankara Kulathu Iyer, in which Mr. Justice Ramaswami held as follows:

S. 44(2) protects the insolvent and not the assets in the hands of the Official Receiver. While the order of discharge frees the insolvent from liability

for all debts provable under the Act, it does not free his property from such liability. The insolvency Court does not become functus officio and the

proceedings can undoubtedly go on in respect of properties in the hands of the Official Receiver or the Court in spite of the discharge. The

discharge order does not have the effect of revesting the property in the insolvent.

Similar contentions as now raised by the learned counsel for the defendant were also raised before the learned single Judge. It was contended that

the order of discharge shall release insolvent from all debts provable under the said Act. Learned single Judge held that an order of discharge does

not mark the termination of all insolvency proceedings relating to the insolvent. Learned Judge further held as follows:-

What it means to the insolvent is thereafter he is released from all the debts provable in insolvency. In this regard a conditional discharge is as much

a discharge as an absolute order of discharge and concludes the insolvency proceedings with respect to the insolvent''s property except his after-

acquired property; They become payable only from the assets vested in the Official Receiver and except to the extent where any condition has

been imposed as regards after-acquired property under S. 41(2) (c) the insolvent is free to deal with his after-acquired property.....

The granting of an order of discharge marks a stage in the administration of the insolvent''s estate when the insolvent is freed from the incubus of all

liabilities provable under the Act and he is able to start life again unburdened by those liabilities. The over-riding intention of the Legislature in all

bankruptcy laws which replaced the barbarous treatment of debtors in the earlier Roman law, viz., that if a debtor did not pay within a specified

time the creditors were at liberty to cut the debtor''s body into pieces and each of them taking his proportionate share and so creditor who cut too

little or too much could be called therefore to account, is that the debtor on giving up the whole of his property shall be a free man again able to

earn his livelihood and having the ordinary inducements to industry. Thus, the Courts have to avoid two extremes, viz., except in very extreme

cases they ought not to refuse discharge absolutely to the debtor provided he has fulfilled his obligations of placing his entire effects for distribution

amongst his creditors; and secondly, too much leniency should not be displayed in the matter of granting discharge with the result that the

insolvency Court may not continue to be a place of pilgrimage for debtors to enter by one door with offerings of debts for the Gods presiding in it

and depart through the other door discharged free of their debts and all their sins.

The discharge of the insolvent does not mean the divesting of the Official Receiver or the insolvency Court becoming functus officio. The

proceedings can undoubtedly go on in respect of the property in the hands of the Official Receiver in spite of the order of discharge. A creditor,

though he has not proved before discharge, is entitled to come in and prove at any time so long as there are assets available for distribution,

provided that he does not by his proof interfere with the prior distribution of the estate amongst the creditors and subject always in cases in which

he has to come in and ask for leave to prove, to any terms which the Court may think it just to impose.

In Akilandathammal v. Ramaswamy Iyengar 1966 1 M.L.J. 69 while dealing with an identical question R. Sadasivam, J. held as under:

It is clear from Mullah''s Insolvency (2nd Edn., Page 369) that there is no provision that a property which is vested in the Insolvent on the passing

of an absolute order of discharge and it was never contemplated that an insolvent should get an absolute order of discharge and yet retain part of

his property. S. 44(2) of the Provincial Insolvency Act (V of 1920) means that the order of discharge frees the insolvent from liability for all debts

provable under the Act but does not free his property from such liability. But there is no authority for the proposition that once a person was

adjudged an insolvent, he was completely deprived of his property and that his property can be owned by the Official Receiver and that if and

when he is granted an order of discharge his property does not revest in him unless there was a specific order to that effect by the Insolvency

Court. Hence when an insolvent sells property after his discharge the title of the purchaser cannot be questioned on the ground that there was no

order of Court revesting such property in the insolvent after his discharge. The fact that the sale could be affected by the Official Receiver taking

suitable steps cannot take away the title of the purchaser so long as such steps are not taken. The Official Receiver could take any such steps only

if there are creditors to be paid and the administration is not over, and the purchaser gets a valid title as long as the sale has not been questioned by

the Official Receiver in any independent proceedings.

Bearing these principles in mind, if we examine the facts of this case, it is quite true that in regard to this debt of G.N.Velumani the order of

discharge has released the bankrupt from liability, but it does not extinguish the debt in the sense that after this order of discharge the creditor could

look to these particular assets which the insolvent was possessed of and which had vested in the Court or Receiver on the filing of the application

for adjudication. Thus, it is seen S. 44(2) of the Provincial Insolvency Act, 1920, protects the insolvent and not the assets in the hands of the

Official Assignee.

It only frees the insolvent from all debts provable under the Act; but does not free his property from such liability. As held by our High Court, the

Insolvency Court does not become functus officio, the proceedings can undoubtedly go on in the hands of the Official Receiver in spite of the order

of discharge. The discharge order does not have the effect of revesting the property in the insolvent. In the absence of any revesting of the

properties in the insolvent, his legal heirs have no authority whatever to deal with the same and execute the agreement in question under Ex.D 1 in

favour of the defendant. As stated above the defendant has miserably failed to prove the proper execution of the agreement Ex.D 1. He has also

not proved that the legal heirs of the insolvent have legal right to execute the document. The plaintiff has established his case by letting the oral and

documentary evidence whereas the defendant has failed to establish his case by any acceptable oral and documentary evidence.

Thus I answer issue No. 2 in favour of the plaintiff and hold that the plaintiff is the absolute copyright holder of Tamil film ""Bhaga Pirivinai"".

Regarding Issue No. 4 I hold that the plaintiff is entitled to claim copyright as per the Sale Certificate dated 25.9.1974.

In view of my findings on Issue Nos. 2 and 4 I hold that the plaintiff is the absolute owner and can claim right as per the Sale Certificate dated

25.9.1974 which includes Video and Television rights as claimed by him. It is also proved by documentary evidence that the plaintiff, after the

purchase of the film has been dealing with the same and exercising his right by permitting the Doordarshan Kendras and others to telecast the film

in television and also permitted one Balakrishnan under Ex.P10 to have the Television rights of the picture for a period of five years. The decisions

cited supra also support my view that the absolute negative right includes all other rights as defined under S. 2(f) of the Copyright Act, which

defines ""cinematograph film"" to include the sound track, as including any work produced by any process analogous to cinematography. As held by

the Delhi High Court, Video and Television are appliances capable of use for reception of signs, signals, writing, images, and sounds and so would

fall within the definition of telegraph. Both articles would be cinematograph, jointly and severally within the meaning of S. 2(c) of the

Cinematograph Act. The definition is an inclusive definition and not exhaustive definition. Both are jointly and severally apparatus for the

representation of movie pictures or series of pictures. Thus, Issue No. 3 is answered in favour of the plaintiff.

Issue No. 1:- In view of my findings on issue No 2 to 4, I do not find any necessity or need for dealing with this issue distinctly as the same has

been dealt with already as they happened to be integrated for decision. In the result, the plaintiff is entitled for a declaration as prayed for. He will

also be entitled for a permanent injunction restraining the defendants, their servants and agents and others under them from infringing in any manner

with the plaintiff''s sole and exclusive copyright of distribution, exhibition, and exploitation of the Tamil Talkie picture ""Bhaga Pirivinai"" in all

dimensions including dubbing rights of Hindi and other Indian languages or foreign languages, Television rights, Video transmission rights, Audio

Cassette rights, etc. throughout the world. The plaintiff is also entitled for a mandatory injunction directing the defendants their servants and agents

and others to withdraw all the video cassettes produced, published and marketed for sale and surrender them into court within one month from

today, failing which it is open to the plaintiff to initiate contempt proceedings against the defendants.

Issue No. 5:- According to the plaintiff, he has claimed and demanded from the defendants a damage of Rs. 1,00,000/- for their infringement

of his valuable copyright and other interest and conversion by them of his properties to their wrongful gain. Further he submits that he would have

got a higher sum if he would have sold the Video rights of his picture in the open film and video market in India and abroad. Therefore, the plaintiff

prayed that this Court may conduct an enquiry in respect of the loss caused to the plaintiff by the defendants by way of their illegal acts and fix

damages which this Court deems proper and award the same to the plaintiff. The plaintiff has also undertaken to pay the necessary and additional

court fees to be fixed by this Court to be awarded to him. Since the plaintiff has succeeded on other issues the plaintiff is entitled to an account

from the defendants of their unlawful gain and compensate the plaintiff for the wrongful loss caused to him. Thus I hold that the defendant is liable

for accounting. The defendants are directed to disclose the real and true account of the transaction of their business in the Video Cassette of the

Tamil talkie picture ""Bhaga Pirivinai"" as claimed by the plaintiff in the plaint. On such account being filed in this Court, a separate enquiry will be

conducted by the learned Master of this Court to ascertain and fix the damages which the plaintiff will be entitled. Hence this issue is relegated to a

separate proceeding to be conducted by the Master of this Court. The defendants are directed to furnish all the details and disclose real and true

account and the nature of the account entered into with third parties by him within one month from today. On such submission of accounts and

other particulars, the Master after giving notice to both parties shall hold an enquiry in regard to the damages incurred by the plaintiff and submit a

report and pass final orders within one month thereafter. Final orders will be passed by this Court thereafter.

Issue No. 6:- The plaintiff is entitled to a decree for a declaration, permanent injunction and mandatory injunction as prayed for. It is declared

that the plaintiff is the absolute copyright holder of the Tamil film ""Bhaga Pirivinai"" which includes Video and Television rights as claimed. The

plaintiff is also entitled to the Copyright as per the Sale Certificate dated 25.9.1974. In the result, the suit is decreed with costs of the plaintiff.