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TDSAT and Civil Jurisdiction

ravidevaraj ,
  16 December 2009       Share Bookmark

Court :
HIGH COURT OF JUDICATURE AT MADRAS
Brief :
The special right recognized under the Copyright Act can be enforced only through the civil court. The machinery contemplated under the TRAI Act cannot determine the civil disputes which fall outside the scope of section 15 of the TRAI Act, 1997. Sufficient cause of action has been shown in the plaint that the suit as framed is maintainable before this court. TDSAT has no jurisdiction to deal with the dispute arisen in this suit.
Citation :
http://indiankanoon.org/doc/1038683/
O.A. No.955 of 2008 and

Application No.4246 of 2008

in

C.S.No.838 of 2008

M/s.Sun TV Network Ltd.,

rep by its Manager (Programming),

Mr.L.Jotheeswaran,

No.4, Norton Road,

Mandaveli,

Chennai 600 028. Applicant in O.A.No.955/2008 /

Respondent in A.No.4246/2008



vs.

M/s.Royal Cable Vision,

rep by its Managing Director,

No.78, Arignar Complex,

T.P.K.Road,

Aandalpuram,

Madurai 625 003. Respondent in O.A.No.955/2008 /

Applicant in A.No.4246/2008

For Applicant in

O.A.No.955/2008 : Mr.R.Muthukumaraswamy,

Senior Counsel for

Mr.N.Senthilkumar

For respondent in

A.No.955/2008 : Mr.R.Krishnaswamy,

Senior Counsel for

Mr.K.Hari Shankar

For applicant in

A.No.4246/2008 : Mr.V.Somayaji, Senior Counsel

for Mr.K.Harishankar

For respondent in

A.No.4246/2008 : Mr.Arvind Dattar, Senior Counsel

and Mr.Vijay Narayanan,

Senior Counsel for

Mr.N.Senthilkumar

COMMON ORDER

The plaintiff M/s.Sun TV Network Limited has sought for prohibitory injunction as against the defendant in O.A.No.955 of 2008 and the defendant, on its part,
has sought for rejection of the plaint in C.S.No.838 of 2008 in Application No.4246 of 2008 filed by it.

2. Both the applications were taken up for common disposal.

3. The plaintiffs would contend that they are a leading Television Network in South India. They invested huge amount for diffusing the system of uplinking various programmes to satellite and facilitating downloading of such programmes by authorised Multi-System Operators (MSOs). The plaintiffs have authorised persons in various areas across the whole of India by executing subscription
agreements on payments of subscription charges as per the schedule. Only such persons are entitled to receive the signals of the petitioners channels for onward transmission to the Cable TV operators. The defendant is a Multi-System
Operator and/or Cable Operator who do not have any subscription agreement with the plaintiffs or their Distributor to tap/receive the signals of the channels
of the plaintiffs. The plaintiffs' pay channels cannot be viewed by those who do not subscribe to the same. The defendant is unauthorisedly and illegally
transmitting the plaintiffs' channels by stealing the plaintiffs' signals in a systematic and scientific manner. Illegal tapping of the plaintiffs' signals by
the defendant and its attached Cable TV Operators are going unabated. Neither the defendant nor its agents or the attached cable operators has any right to
download the signals of the plaintiffs for onward transmission to the end users. The defendant filed a petition before TDSAT. An order has been passed by it. The
learned counsel appearing for the defendant had assured that there would not be any piracy of signals. The plaintiffs, being the owner of the copyright over the
signals, are entitled to Copyright infringement and protect their rights against unauthorised transmission and further communication to the public. Several individuals including Advocates have sworn to affidavits substantiating the
theft of signals by the defendant. Section 62 of the copyright Act, 1957 confers territorial jurisdiction on this court. Rebroadcasting of the broadcasting of
the plaintiffs by the defendant amounts to infringement of copyright. There is no bar under the Telecom Regulatory Authority of India(TRAI) Act, 1997 in respect of suits filed under the Copyright Act. Therefore, the plaintiffs have sought for interim injunction as against the defendants and also for dismissal of the application seeking rejection of the plaint.

4. The defendant has contended that the plaintiffs have not disclosed any cause of action. The suit as framed is not maintainable before this court. In view of the orders already passed before the Telecom Disputes Settlement and Appellate Tribunal(TDSAT), the present suit is not maintainable. Without seeking leave under clause 12 of the Letters Patent, the plaintiffs have filed the suit before
this court. The Copyright Act protects only works. No single work has been asserted by the plaintiffs in the copyright suit. The Copyright Act does not apply to signals without reference to the underlying work. No person could claim a copyright in signal simpliciter de hors the underlying work. There is a bar under Section 15 of the TRAI Act, 1997 to file a civil suit before this court.
Frivolous suit has been filed out of political vendetta to wreak vengeance on the defendant. The defendant never transmitted the signals of the plaintiffs bouquet of channels to any Cable TV Operators. It does not have any proposal to transmit the signals of the plaintiffs without proper authority. Inspite of the tendering of subscription fee, the plaintiffs raised frivolous issues before TDSAT. No prima facie material has been produced before the court to establish that the defendant has indulged in transmitting the pirated signals. Therefore, the defendant has sought for dismissal of the application seeking interim
injunction and for allowing the application seeking rejection of the plaint.

5. Learned Senior Counsel appearing for the plaintiffs would contend that the TRAI Act, 1997 is not concerned with infringement of copyrights. As far as copyrights violation is concerned, this court has jurisdiction to entertain the
suit. The plaint discloses cause of action. Section 15 of the TRAI Act bars the suit only in respect of the matters which can be adjudicated by the Appellate Tribunal. The plaintiffs have produced sufficient materials to show prima facie case. The infringement of the broadcasting right also has been established before the court. Therefore, the plaintiffs are entitled to an order of injunction and the plea for rejection of the plaint has no legs to stand upon.

6. Learned Senior Counsel appearing for the defendants would contend that the entire pleading in the plaint would go to show that the plaintiffs are aggrieved by the non-compliance of the directions given by TDSAT. Such a grievance will have to be agitated only before TDSAT. There is a clear bar under section 15 of the TRAI Act. The alleged stealing of the signals is not covered under the
Copyright Act. There can be no copyright for the signals simpliciter. The plaintiffs cannot, therefore, press into service the provision under section 62 of the Copyright Act to invoke the territorial jurisdiction of this court. The
plaint is not clear as to for what work, the copyright has been claimed. Necessary pleadings are also absent with regard to the broadcast reproduction rights of the plaintiffs. The defendant has asserted that it has not transmitted the signals of the plaintiffs. It has no proposal to transmit the signals of the plaintiffs' channels unauthorisedly. Therefore, the plaintiffs cannot claim for an order of injunction. The plaint itself is liable to be rejected.

7. Section 37 of the Copyright Act, 1957 recognizes a special right known as "broadcast reproduction right" in respect of broadcasting done by a broadcasting
organisation. Such a reproduction right shall subsist for 25 years from the date when the broadcast was first made. No person can rebroadcast the broadcasting or cause the broadcasting to be heard or seen by the public on payment of any charges or make any sound recording or visual recording of the broadcasting or sell or hire to the public any such sound recording or visual recording without
due licence from the owner of such special right recognized under the aforesaid provision of law.

8. Section 2(dd) of the Copyright Act defines broadcast. Broadcast means communication to the public by any means of wireless diffusion or by wire and includes a re-broadcast. Communication to the public has been defined under
section 2(ff) of the Copyright Act. Communication to the public means making any work available for being seen or heard or otherwise enjoyed by the public
directly or by any means of display or diffusion. In the plaint, the plaintiffs have complained of illegal transmission of the signals of the plaintiffs.
Transmission of the signals is nothing but broadcasting. The special right under section 37 of the Copyright Act will have to be necessarily established only before the civil court which has jurisdiction to adjudicate upon it and not before the TDSAT constituted under the TRAI Act, 1997. Of course, the plaintiffs have not specifically adverted to any literary, dramatic, musical or artistic
work to which they have got ownership.

9. Further, the court will have to decide only after giving opportunity to both
the parties to lead evidence as to whether the broadcasting stuff of the
plaintiffs itself would come under the definition of the work for which a
copyright action subsist under section 13 of the Copyright Act, 1957. But, the
court finds that the plaintiffs have, prima facie, shown before the court that
they have got a special right of broadcasting as recognized under section 37 of
the Copyright Act. The said right will have to be protected by the plaintiffs
from infringement under the Copyright Act invoking the civil original
jurisdiction of the court.

10. Section 39A of the Copyright Act, 1957 reads as follows:-

"Other provisions applying to broadcast reproduction right and performer's
right-- Sections 18, 19, 30, 53, 55, 58, 64, 65 and 66 shall, with any necessary
adaptations and modifications, apply in relation to the broadcast reproduction
right in any broadcast and the performer's right in any performance as they
apply in relation to copyright in a work: Provided that where copyright or
performer's right subsists in respect of any work or performance that has been
broadcast, on licence to reproduce such broadcast shall take effect without the
consent of the owner of rights or performer, as the case may be, or both of
them."

11. Sections 18, 19, 30, 53, 55, 58, 64, 65 and 66 of the Copyright Act were
thoroughly scanned by this court. All those provisions are found applicable to
the infringement of the copyright in some work. Therefore, the legislature has
thought it fit to apply those provisions also to enforce broadcast reproduction
right recognized as a special right under section 37 of the Copyright Act, 1957
with necessary adaptations and modifications. Those provisions, as it is, cannot
be applied for the simple reason that those provisions have been tailored to
apply specifically to a circumstance where there was infringement of copyright
in a work. By no stretch of imagination, it can be stated that section 39A
debars the applications of other provisions under the Copyright Act, 1957 to
enforce the broadcast reproduction right under section 37 of the Copyright Act.

12. Therefore, the court rejects the submission made on the side of the
defendant that section 62 of the Copyright Act, which is not specifically
referred under section 39A of the Copyright Act, falls outside the scope of
broadcast reproduction right enforceable under section 37 of the Act. Without
any hesitation, the court holds that section 62 of the Copyright Act is also
very much applicable to enforce the broadcast reproduction right conferred under
section 37 of the Act. The Code of Civil Procedure does not contemplate filing
of a suit in a court within whose jurisdiction the plaintiff resides or carries
on business. The non obstante clause 62(2) of the Copyright Act specifically
says that a suit under the Copyright Act can be laid even before a court within
the local limits of whose jurisdiction, at the time of institution of the suit,
the person instituting a suit actually and voluntarily resides or carries on
business or personally works for gain. The plaintiffs have shown before the
court that they carry on business in the city of Chennai. Section 62(2) of the
Copyright Act squarely applies to the Copyright action initiated by the
plaintiffs. Therefore, the plea that this court has no territorial jurisdiction
to deal with the present suit stands rejected.

13. It is relevant to refer to section 15 of the TRAI Act, 1997 which reads as
follows:-

"Civil Court not to have jurisdiction  No Civil Court shall have jurisdiction
to entertain any suit or proceedings in respect of any matter which the
Appellate Tribunal is empowered by or under this Act to determine and no
injunction shall be granted by any Court or other authority in respect of any
action taken or to be taken in pursuance of any power conferred by or under this
Act." The Civil Court has been barred from encroaching upon the jurisdiction of
the Appellate Tribunal contemplated under the Act. The aforesaid provision would
go a step further to put an embargo on civil courts to grant injunction in
respect of the proceedings before the Appellate Tribunal (TDSAT).

14. In UNION OF INDIA v. TATA TELE SERVICES (MAHARASHTRA) LIMITED ((2007) 7 SCC
517) it has been held as follows:-

" 15. The conspectus of the provisions of the Act clearly indicates that
disputes between the licensee or licensor, between two or more service providers
which takes in the Government and includes a licensee and between a service
provider and a group of consumers are within the purview of TDSAT. A plain
reading of the relevant provisions of the Act in the light of the Preamble to
the Act and the Objects and Reasons for enacting the Act, indicates that
disputes between the parties concerned, which would involve significant
technical aspects, are to be determined by a specialised tribunal constituted
for that purpose. There is also an ouster of jurisdiction of the civil court to
entertain any suit or proceeding in respect of any matter which TDSAT is
empowered by or under the Act to determine. The civil court also has no
jurisdiction to grant an injunction in respect of any action taken or to be
taken in pursuance of any power conferred by or under the Act. The constitution
of TDSAT itself indicates that it is chaired by a sitting or retired Judge of
the Supreme Court or sitting or a retired Chief Justice of the High Court, one
of the highest judicial officers in the hierarchy and the members thereof have
to be of the cadre of Secretaries to the Government, obviously well experienced
in administration and administrative matters.

16. The Act is seen to be a self-contained code intended to deal with all
disputes arising out of telecommunication services provided in this country in
the light of the National Telecom Policy, 1994. This is emphasised by the
Objects and Reasons also.

17. Normally, when a specialised tribunal is constituted for dealing with
disputes coming under it of a particular nature taking in serious technical
aspects, the attempt must be to construe the jurisdiction conferred on it in a
manner as not to frustrate the object sought to be achieved by the Act. In this
context, the ousting of the jurisdiction of the civil court contained in Section
15 and Section 27 of the Act has also to be kept in mind. The subject to be
dealt with under the Act has considerable technical overtones which normally a
civil court, at least as of now, is ill equipped to handle and this aspect
cannot be ignored while defining the jurisdiction of TDSAT."

15. In CELLULAR OPERATORS ASSN. OF INDIA v. UNION OF INDIA ((2003) 3 SCC 186),
it has been held as follows:-

"TDSAT was required to exercise its jurisdiction in terms of Section 14-A of the Act. TDSAT itself is an expert body and its jurisdiction is wide having regard
to sub-section (7) of Section 14-A thereof. Its jurisdiction extends to examining the legality, propriety or correctness of a direction/order or decision of the authority in terms of sub-section (2) of Section 14 as also the dispute made in an application under sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin
to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a tribunal depends upon the relevant statute.
TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by Parliament in the amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in
law."

16. Now the court will have to analyse whether the dispute which has been raised before this court comes directly within the purview of the jurisdiction
of the TDSAT. TDSAT has been established to adjudicate any dispute between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers. Further, the TDSAT has been empowered
to hear and dispose of appeal against any direction, decision or order of the TRAI established under sub-section (1) of section 3 of the TRAI Act, 1997. The
present dispute has not arisen out of any order emanated from TRAI. Now, the court will have to find whether the present dispute with respect to the
transmission of the signals of the plaintiffs is between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers.

17. The licensor, as per section 2(1)(e-a), is only the Central Government or the Telegraph Authority who grants licence under section 4 of the Indian Telegraph Act, 1885. Therefore, neither the plaintiff nor the defendant falls
under the definition of licensor. Licensee as per section 2(1)(e) is a person licensed under sub-section (1) of section 4 of the Indian Telegraph Act, 1885. It is an admitted fact that the defendant is not a person obtained licence under the Indian Telegraph Act, 1885. Therefore, the defendant is also not a licensee as defined under the TRAI Act, 1997. Service provider as per section 2(1)(j)
means "Government as service provider and includes a licensee". As already pointed out, the defendant is also not a licensee under the Indian Telegraph Act. Therefore, the defendant is also not a service provider. The defendant may be a consumer. But when a dispute has arisen between a service provider and a group of consumers, then such a dispute will have to be adjudicated upon by the Appellate Tribunal. The present dispute with respect to the transmission of the signals of the plaintiffs falls entirely outside the jurisdiction of the Appellate Tribunal. Therefore, the submission made by the learned Senior Counsel appearing for the defendant that the plaintiffs should have approached the Appellate Tribunal if at all there is any breach of direction given by the
Appellate Tribunal does not appeal to the mind of the court.

18. The special right recognized under the Copyright Act can be enforced only through the civil court. The machinery contemplated under the TRAI Act cannot determine the civil disputes which fall outside the scope of section 15 of the TRAI Act, 1997. Sufficient cause of action has been shown in the plaint that the suit as framed is maintainable before this court. TDSAT has no jurisdiction to deal with the dispute arisen in this suit.

19. The plaintiffs have produced the police complaints to show prima facie that there are instances of theft of signals for broadcasting by the defendant. Four Advocates practising in the city of Madurai have filed separate affidavits to the effect that the programmes broadcast by the plaintiffs is provided to the consumers through the Cable TV Operators who get signals from Royal Cable Television, the defendant herein.

20. The defendant has categorically stated in its counter that it never indulged in any acts as alleged by the plaintiffs and it does not propose to transmit the signals of the plaintiffs without proper authority. Though such an undertaking is found in the counter, the plaintiffs have established prima facie that there are instances of pirated signals sourced from the plaintiffs were broadcast by the defendant to the consumers through their Cable Operators. Therefore, the defendant will have to be injuncted from broadcasting the signals
of the plaintiffs.

21. The Division Bench of this court in LAHAR RECORDING COMPANY v. MUSIC MASTER AUDIO VIDEO, MANUFACTURING CO. (P) LTD. (2008 (3) CTC 385) has held that the relief of injunction will not be granted if the damage caused to the defendant by granting the injunction is out of all proportion to the seriousness of the infringement or to the possible damage to the plaintiff. The court will have to be satisfied that the inconvenience or comparative mischief which is likely to arise from withholding an order of injunction would be greater than that which is likely to arise from granting it. It has further been observed therein that when the plaintiffs have not established conclusively to the satisfaction of the court that the defendant has manufactured or marketed or sold the audio rights or audio cassettes after the expiry of the assignment period, the plaintiffs are not entitled to the relief of injunction.

22. In the instant case, as already pointed out by this court, the plaintiffs have launched prosecution complaining of signal piracy committed by the defendant. The four affidavits of Advocates filed would go to show prima facie that signals broadcast by the plaintiffs are pirated by the defendant. The plaintiffs have shown prima facie case for grant of interim injunction as prayed for. If the defendant is permitted to broadcast the signals of the plaintiffs, there will be much hardship to the plaintiffs. The balance of convenience is only in favour of the plaintiffs. Therefore, the plaintiffs are entitled to the relief as sought for. Therefore, ad interim injunction is granted as prayed for.

23. Appointment of Advocate Commissioner has become redundant in view of the order of injunction passed by this court. O.A.No.955 of 2008 seeking for injunction is ordered accordingly. Application No.4246 of 2008 seeking rejection
of plaint is dismissed.

 
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