T.B.VELU AND ORS. V. S.SIVA KUMAR AND THE STATE

T.B.VELU AND ORS. V. S.SIVA KUMAR AND THE STATE Crl.O.P.No. 12211 of 2017

Facts of the case:

The accused is a theatre owner and has launched the ‘Kadamban’ film.  The de facto complainant, who was employed as the Secretary of the Tamilnadu Film Producers Council’s Assistant has obtained information that the accused had secretly copied the film and then recorded it by video. So, Wunderbar Films pvt. Ltd. had filed a FIR under Section 482 of Criminal Procedure Code.  On the basis of the complaint, the case was filed against prosecution under section 7(1) of the Cinematograph Act, 1952 and Sections 51 and 63(a) of the Copy Rights Act, 1957.

Issues of the case:

  • Whether any person who is not the owner of the film is authorised to bring a criminal action under Section 63 of the Copy Right Act?
  • Whether the direct knowledge about the claims is always required?
  • Whether filing this case under section 7 of the cinematograph act valid?

Arguments of Petitioner:

The petitioner’s major argument is that the FIR was solely filed based on the hearsay information, and further there is no evidence on record that the defacto complainant is the copy owner of the copyright of the film.

Furthermore, using section 7[1] of the Cinematograph Act is completely illogical. Nobody is arguing about the movie released in a theatre hasn’t been certified. As a result, there is no issue of offence under section 7 [1] [i] of the Cinematograph Act.

Likewise, it was further argued that there are no materials to indicate that the accused copied the film by a video as entire complaint is just based on hearsay. As a result, as per the petitioner’s counsel, the FIR is biased one, and prolonging to do so is an abuse of the legal process.

Arguments of Respondent:

The learned counsel for the respondent, on the other hand, claimed that the FIR was launched based on information of de facto complainant about the copying of film.  As a result, they argue that the FIR discloses a prima facie case to prosecute the accused, and so as per them, the FIR can’t be overturned.

Reasoning of the court:

To begin, the Court believes that submitting the FIR under section 7 [1] [a] [i] of the Cinematograph Act is a useless exercise based on a records.  According to the court, no one may argue that the said film exhibited in the theatre is restricted for public display or for public exhibition restricted to adults, as defined by section 7 [1] [a] [i] of the Cinematograph Act. As a result, the court determined that filing of FIR under section 7 [1] [a] [i] of the Cinematograph Act is completely illogical and cannot be continued.

Under section 51 and section 63(a) of the Copy Rights Act, 1957, the prosecution contends that the accused has breached the film’s copy right. In this regard, the court stated that the film is not owned by either the defacto complaint or the producer council. According to the court’s interpretation of section 63 of the copy right act, anybody who willfully infringes or abets in work’s copyright infringement, or any other right under the Act, excluding the right granted by section 53A, shall be punishable with specified degree of punishment.

The court clarified in the preceding section that the specific work’s author is the owner. In this regard, the court cited a case of Nagin Chand Jain v. State of U.P. SCC OnLine All 653 which held that only the author, assignee, or licensee is authorised to bring a criminal action under Section 63 of the Copy Right Act to defend the work’s copy right. As a result, in this case, the court found that the defacto complainant does not fit into any of the said categories. So, filing a complaint by a third party who has no connection to the film is incorrect.

Aside from that, the court noted that there was no direct knowledge to the defacto complainant about the claims in the FIR and the whole allegation is merely hearsay information. The prosecution under sections 51 and 63(a) of the Copy Rights Act, 1957 is a pointless exercise because the claims are founded on hearsay knowledge and defacto complainant has nothing to do with the film in any way, the court decided.

Likewise, the prosecution under section 7 [1] [a] [i] of the Cinematograph Act is not enforceable because the prosecution does not allege that the said film has not been certified, as required by section 7 [1] [a] [i] of the Cinematograph Act.

Judgment:

As the continuation of prosecution against the petitioner is waste of time and also it will infringe the right of the petitioner, accordingly, the court allowed the Criminal Original Petition and quashed the First Information Report.

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