IPRMENTLAW WEEKLY HIGHLIGHTS (OCTOBER 14-20)

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UJDA CHAMAN VS BALA- PANORAMA STUDIOS MOVES BOMBAY HIGH COURT AGAINST MADDOCK FILMS ALLEGING COPYRIGHT INFRINGEMENT

Producers of the film ‘Ujda Chaman’ have moved the Bombay High Court against the producers of the film ‘Bala’ alleging infringement of copyright of their film. The two films are both featuring a bald protagonist and have similar story lines attached to them.

The Plaintiff’s film is an official remake of the 2017 Kannada film ‘Ondu Motteya’. Bala’ is scheduled to be released on 7th November, while ‘Ujda Chaman’ on 8th November.

The matter was heard before Justice A.K. Menon on 18th October, wherein the Court directed the plaintiff to deposit a copy of the film ‘Ujda Chaman’ with the court. The parties also agreed that the plaintiff’s representative would be permitted to view the defendant’s film on 19th October. The matter is next listed to be heard on October 22, 2019. Read order here.

While the makers of Bala have not yet sorted out this dispute, another controversy has embroiled in relation to the recreated version of the song ‘Don’t be Shy’. Music composer-singer Dr Zeus took to Twitter to slam Bala makers along with Badshah and Sachin Jigar (who are credited for Don’t Be Shy in Bala) for plagiarising his songs.

OGLIVY AND MATHER DRAG VIVO MOBILE TO BOMBAY HIGH COURT OVER COPYRIGHT INFRINGEMENT IN AN ADVERTISEMENT

Brand David Communications Pvt. Ltd which is a part of the well-known advertising and marketing group Oglivy an Mather (O&M) Group filed a copyright infringement suit against Vivo mobiles seeking permanent injunction to restrain them from exploiting the television commercial of their mobile phone titled ‘ Amusement Park’. The Plaintiff claimed that they had made an advertising and marketing pitch to the Defendant No.1  and that the literary, artistic and other creative works pertaining to the pitch were made in confidence by the Plaintiff to the Defendant No.1. The Plaintiff alleged that the Defendants in collusion with each other unauthorizedly and illegally reproduced and exploited the said works so as to infringe the Plaintiff’s copyright.

The defendant submitted that no confidential information is involved and the law is clear that no copyright subsists in an idea. They submitted that the theme is set on an ‘Amusement Park’ and that there are two main characters of similar age, who sneak into an amusement park after it has closed and the creative device of lights switching on the moment selfie camera pops out. These features are not unique or novel and are mere vehicles for highlighting the features of Defendant No.1’s product. The amusement park, carousal and ferris wheel and lights switching on are not protectable expressions, but rather merely an advertising theme. The defendant further submitted that the copyright laws are not to be construed in a fashion whereby a theme cannot be used in future television commercials. Further that the Plaintiff is not the first one to use ‘Amusement Park’ as a background in the TVC and therefore their claim on originality is incorrect.

The court observed certain similarities in the works of the plaintiff and the defendant. However, the court was convinced on the issue of balance of convenience being in favour of the defendant as the TVC had aired for the first time on 20th September, 2019 which the plaintiff was aware of. The advertisement has been created after expending several man hours of effort which spread across several months from inception till release and cost more than 50 crores. To ensure that this advertisement is prominently disseminated,  Defendant No.1 booked time slots on various channels throughout the festive season of Diwali involving commercial cost of crores of rupees. The Court was of the view that if an unconditional injunction is granted , it would not be in interest of justice. The Court accordingly directed the Defendant No.1 to deposit Rs. 1 crore with the court.  The matter is next listed on 22nd November, 2019.

Read order here.

MADRAS HIGH COURT RESERVES ORDER ON VIJAY’S FILM ‘BIGIL’

Since 2012 almost all films of Vijay have faced controversies in one way or the other. This time it is his latest sports action movie ‘Bigil’ starring Vijay and Nayanthara, written and directed by Atlee and produced by Kalpathi S Aghoram..

Petitioner KP Selvah, a movie director, has moved to the Madras High Court claiming copyright over the story. The story of Bigil resembles his 256 page script which he has duly registered with South Indian Film Writers Association. He claims to have discussed the story with many producers, however, the makers of Bigil have produced the said film completely resembling his script, which amounts to infringement of his copyright. To prevent further infringement of his right he wanted the court to grant interim stay against the release of Bigil.

Justice R Suresh Kumar has adjourned the plea to 16th October for the producers of Bigil to submit proof of evidence in connection with the claim.

The film is scheduled to be released on 25th October.

AFTERMATH OF THE SUBODH GUPTA CASE

Artist Subodh Gupta had filed a 5 Cr defamation case in Delhi High Court against an anonymous Instagram account ‘HerdSceneAnd’ for accusing him of sexual misconduct.

The case was heard by Justice Rajiv Sahai Endlaw, on 20th September. Delhi High Court ordered Google to take down or de-index URL’s mentioning about the accusation. Facebook was ordered to reveal the identity of the person behind the Instagram account in a sealed envelope.

While Facebook diligently followed the courts order, Google resisted any attempts to control the content as that would hamper the freedom of speech and expression.

Google holds its stand by reportedly explaining how it is a search engine indexing platform, it only hosts posts and articles uploaded on third-party websites or platforms.

Google also claimed how complying with the order would have a ‘chilling effect on freedom of speech and expression and be against the public interest’

However, Facebook has taken down the post by the anonymous Instagram account ‘HerdSceneAnd’ and is earnestly complying with the orders of the High Court, but it has not been confirmed that while submitting the identity of the account holder will Facebook only share the e-mail address used to create the account or more specific information to directly identify the individual.

BOMBAY HIGH COURT SETS ASIDE THE CCI ORDER IN THE MATTER OF NSTPL VS STAR AND SONY

As per reports, Bombay High court has set aside an order passed by Competition Commission of India in the matter of  Noida Software Technology Park Ltd (NSTPL) vs Star India Pvt. Ltd. , Sony Pictures Network India Pvt. Ltd and Indian Broadcasting Foundation (IBF).

The CCI vide its order dated 27th July, 2018 had directed the Director General to cause an investigation into the matter to ascertain whether the Opposing Parties had indulged in refusal to deal by way of price discrimination with the Informant in contravention of the provisions of the Section 3(4) of the Competition Act.

The two broadcasters approached the Bombay HC challenging the CCI order where they argued that CCI not only lacked jurisdiction to pass such an order particularly because the broadcasting sector is regulated by TRAI and TDSAT under the provision of the TRAI Act, but also it had failed to apply the correct test and relevant factors mandated by the Competition Act to determine whether a broadcaster has refused to deal with the complainant and other distributors thus causing an adverse effect on competition. The division bench of Justice Akil Kureshi and S J Kathawalla on October 16 held that the CCI had applied a wrong test to determine the anti-competitive conduct, as argued by the broadcasters. “Before directing an investigation, the CCI ought to have applied its mind to and scrutinized the Petitioners’ conduct based on the factors set out under Section 19(3) of the Competition Act,’’ said the HC after observing that it had jurisdiction to entertain and decide the broadcasters’ challenge against the CCI order. Section 19 (3) lays down factors to determine whether any conduct has an appreciable adverse effect on competition. The HC after hearing CCI counsel and counsel for NSTPL -also held, “ Logically, if NSTPL does not establish that it is “similarly situated” then it would not be entitled to the same price/incentives etc. on reconciliation of accounts. These are jurisdictional aspects and facts, which must be decided before CCI could have ordered investigation.’’ The HC also said that an aspect that led it to quash the CCI order was that a prima facie finding of ‘Appreciable Adverse Effect on Competition’ (AAEC) would be an essential and mandatory finding before CCI could direct investigation. The HC observed that the CCI order “lacks this necessary finding’’ and hence it cannot be sustained on this count alone.

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