S.N Variava, J.:— This Notice of Motion for Injunction as prayed for raises interesting questions in respect of rights of parties qua programmes telecast via Satellite T.V
2. The facts, very briefly staged are as follow:—
The 2nd Plaintiffs are owners of Copyrights in various programmes which are produced in India. The 2nd Plaintiffs have given an exclusive licence to the 3rd Plaintiffs to broadcast those programmes on a T.V Channel known as ‘Zee T.V Channel’. This broadcast is made from Hongkong to the “Asian Footprint” of “Asiaset I”. This includes India. ‘Zee T.V Channel’ is a “Free to Air Programme”. This means that the viewers are not charged for watching the programme.
3. As this is a “Free to Air Programme”, the expenses are naturally met through advertisements. The 1st Plaintiffs are the sole agent, who procure for the 3rd Plaintiffs' advertisements in India. The 3rd Plaintiffs after receiving the programme from the 2nd Plaintiffs and the advertisements from the 1st Plaintiffs combine the two and broadcast the programme on the ‘Zee T.V Channel’. The advertisers choose programmes. in which to advertise, according to their popularity and time of showing. Also, it need not be stated that an advertiser will expect that his advertisement is shown during the programme. The Defendants are two Companies which own, control and operate Cable Television Networks in several cities. Thus instead of individual viewers having their own separate dish antennas, the cable operators have common dish antennas and other equipment for deploying the signals by means of wire to viewers for a charge. In cities like Bombay the majority of viewers will be subscribers to Cable Television Networks.
4. With the sophisticated equipment which is now available Cable Television Networks are in a position to blank out/switch off the signals sent by various broadcasters and interpose/substitute their own programmes or materials. The Plaintiffs allege that the Defendants are blanking out the Plaintiffs' advertisements and substituting their (i.e Defendants) advertisements during the period that the Plaintiffs are broadcasting their advertisements. This is admitted by the Defendants. The Defendants claim that they have a right to and are entitled to do so. The Plaintiffs also allege that the Defendants are running an advertisement film along the lower part of the T.V screen simultaneously with the main programme. The Plaintiffs allege that this advertisement film runs alongwith the programme and covers about 20 to 25% of the T.V screen. The Defendants deny that they are doing so. In my view, for the purpose of this Notice of Motion it is not necessary to go into the question whether the Defendants are doing this or not. As the Defendants are denying that they are so doing and as even on the arguments of Mr. Kapadia, if the Defendants were running a film along the foot of the T.V screen during the programme, the Defendants would be committing a wrongful act, an injunction restraining the Defendants, their servants and agents restraining them from running an advertisement film along the lower part of the Television must be passed.
5. The main question before the Court is whether the Defendants have a right and are entitled to substitute their advertisements during the broadcast of the Plaintiffs. It is clarified that all observations in this Order are prima-facie. The Court will not keep on repeating that the observations are prima-facie.
6. The Plaintiffs have based their action upon various causes of action viz:—
(a) Inducing a breach of Contract;
(b) Passing off;
(c) Copyright and Broadcast Reproduction Rights; and
(d) Conversion.
7. The law regarding the Tort of Inducing breach of contract has long been recognised by English Courts. Before the English authorities are considered it would be appropriate to set out the ratio laid down by Supreme Court in the case of Jay Laxmi Salt Works (P) Ltd. v. State Of Gujarat. reported in (1994) 4 SCC 1. In this case the Supreme Court has held that injury and damage are two basic ingredients of the law of Tort. The Supreme Court has held that the Tortious liability are breach of duty primarily fixed by the law while in contract they are fixed by the parties themselves. The Supreme Court has held that the law of Torts being a developing law its frontiers are incapable of being strictly barricated. The Supreme Court has held that the ambit of Tortious law keeps on widening on the touchstone of fairness and practicality of the situation. The Supreme Court has held that truly speaking the entire law of Torts is founded and structured on morality i.e that no one has a right to injure or harm others intentionally or even innocently. The Supreme Court has held that therefore it would be primitive to class strictly or to give finality to the ever-expanding and growing horizon of Tortious liability. The Supreme Court has held that a liberal approach to Tortious liability by Courts is more conducive for social development, orderly growth of the society and cultural refineness.
8. Let us now see how the English Law of Tort of Inducing breach of Contract has developed.
In the case of Quinn And Leathem reported in (1901) Appeal Cases Pg. 495, an action was brought for damages for having induced a breach of a contract. The Plaintiff used to regularly supply meat to a butcher. The Plaintiff employed certain persons who were not members of a particular Union. The Union asked the Plaintiff not to employ non-members and to only employ their members. The Plaintiff having refused, the Union convinced the employees of the butcher to boycott work if Plaintiffs meat was accepted by the butcher. As the butcher's employees threatened to strike work the butcher refused to take meat from the Plaintiff. The Plaintiff thus could not sell his meat. Lord Justice Macnaghten held that malicious intention was not the gist of the action. It was held that the action was on the ground of violation of legal right committed knowingly. It was held that the violation of the legal right was the interference with contractual relations recognised by law without any sufficient justification for the interference. It was held that if the interference is wrongful and intended to damage third person his rights are infringed although indirectly. It was held that the damage is not remote or unforeseen but is the direct consequence of what has been done. It was held that the law should not be defective as to refuse a remedy by an action. It was held that the principle involved could not be confined to inducements but must reach all wrongful acts done intentionally to damage a particular individual and actually damaging him. A caution however was issued that an act done by a person in pursuit of a trade, although resulting in injury to others by reason of legitimate competition, would not give any right to a cause of action. It was held that persons were entitled to promote their own trade/interest even though the same may be injurious to his competitors. It was held that an intention to injure another must be distinguished from an intention to legitimately advance ones own interest.
9. In the case of Jasperson And Dominion Tobacco Company reported in (1923) Appeal Cases Pg. 709, two Companies appointed an Agent to buy tobacco on their behalf from the growers. One of the terms of appointment was that the agent would not act for anybody else. The Respondents, in order to avoid increase in the price of the tobacco by reason of competition, persuaded the agent also to purchase on their behalf but in the name of the principals of the agent. The agent thus purchased a larger quantity in the name of his principals. The Respondents refused to accept the excess quantity. The principals became liable to the growers even for the excess quantity. The principals brought action against the Respondents for recovery of the amounts which they had been forced to pay. The Court held that by inducing the agent to violate his duty the Respondents has occasioned to them a loss. The Court held that the Respondents had been rightly ordered to make good that loss. The Court held that this conclusion was not based upon the existence of any contract between the parties, but upon the interference by the Respondents which brought about a violation of legal right to have the contract with the agent duly observed. The Court held that there was interference with the contractual relations recognised by law without any sufficient justification. The Court held that the right of the principal was arising as a consequence of the action of the Respondent and the Respondent was bound to compensate.
10. In the case of G.W.K Limited v. Dunlop Rubber Company Ltd., reported in the Times Law Reports Pg. 376, the action was brought by two Plaintiffs against Dunlop Rubber Company Ltd. The 1st Plaintiffs were manufacturers of motor cars. They had a contract with the 2nd Plaintiffs who were the manufacturer of tyres. Under the Agreement all cars of the 1st Plaintiffs were to be fitted with tyres of the 2nd Plaintiffs. The 1st Plaintiffs sent two cars to an exhibition. The cars when sent were fitted with the 2nd Plaintiffs' tyres. The Defendants who were Dunlop Rubber Company Ltd., on the night before the opening of the exhibition, removed the 2nd Plaintiffs' tyres and substituted their own tyres in spite of knowledge of the agreement between the 1st and 2nd Plaintiffs. Both the plaintiffs filed a suit. The 1st plaintiffs cause of action was knowingly interfering with contractual rights and inducing a breach of the contract. The 2nd Plaintiffs filed a Suit on the basis of the trespass to the goods. The Court held that the Defendants had knowingly committed a violation of the legal rights by interfering, without any justification whatever, with the contractual relations existing between the Plaintiffs. It must be noted that the facts of this case are very similar to the facts of the present case. Here also the 3rd Plaintiffs have Agreements with the various advertisers which require the 3rd Plaintiffs to ensure that their advertisements appear during the programmes. By switching off/blanking out the 3rd Plaintiffs' advertisements, the Defendants are factually preventing the 3rd Plaintiffs from carrying out their contractual obligations inasmuch as the advertisements do not then appear.
11. In the case of D.C Thomson & Co. Ltd. v. Deakin reported in (1952) 1 Chancery pg. 646, the Plaintiffs were printers and publishers of periodicals. They were supplied papers by one Bowaters Sales Ltd. The Plaintiffs dismissed one of their workers. The Union to which that worker belonged called a strike of its members, who were the employees of the Plaintiffs. The Union also called upon their members, who were drivers for Bowaters Sales Ltd. to refrain from delivering papers to the Plaintiffs. The drivers of Bowaters Sales Ltd. as well as the loaders refused to load and/or deliver papers to the Plaintiffs. This resulted in Bowaters Sales Ltd. breaching their obligation to supply the papers. The Plaintiffs brought an action against the Union for an injunction preventing them from procuring any breach of contract by Bowaters Sales Ltd. In this case it has been held that direct persuasion or procurement or inducement by a third party to a contract breaker with knowledge of the contract and with intention about his breach is clearly to be regarded as a wrongful act in itself. Thus it is to be seen that the procurement of a breach with knowledge of a contract is now considered to be a wrongful act in itself. The Court held that this is a case of an actionable interference in its primary form. The Court held that the persuasion, inducement or procurement of breach of contract by one of the parties to it may be committed by the third party against the will of both and without the knowledge of either, but it must be done with knowledge of the contract. The Court held that an actionable interference would undoubtedly have been committed if a third party, with knowledge of a contract and with intent to bring about its breach, placed physical restraint upon one of the parties to the contract, so as to prevent him from carrying it out.
12. In the case of Merkur Island Shipping Corporation v. Laughton reported in (1983) 2 All England Law Reports Pg. 189, the ship owners were engaging Asian crew, who were being paid salaries below the rates approved by the International Transport Workers Federation. Whilst the ship, on a sub-charter, was docked at Liverpool, the International Transport Workers Federation (I.T.W.F) decided to blackball the ship because of the low wages paid by the ship owners. I.T.W.F persuaded the tugmen to refuse to operate tugs assigned to move the ship. The result was that the ship was unable to leave port. The ship owners applied for an injunction against the I.T.W.F to lift the blackball and for damages in tort for unlawful interference with the contract. The Court held that all prevention of due performance of a primary obligation under a contract was intended to be included even though no secondary obligation to make monetary compensation came into existence. The Court cited with approval Lord Dening's statement to the effect that an interference is not confined to the procurement of a breach of contract. It even extends to a case where a third person prevents or hinders one party from performing his contract.
13. Thus it is to be seen that the Tort of Inducing breach of contract, as now developed in England, is that if the act of third party, either by persuasion, inducement or procurement results in breach of a contract, the third party would have committed an actionable interference with the contract. The act of the third party may be against the will of both and without the knowledge of either. It must however, be with the knowledge of the contract. The same would be the result if the third party places a physical restraint upon one of the parties so as to prevent him from carrying out his part of the contract. It is to be seen that such action would be a direct invasion. It is to be further seen that this direct invasion need not necessarily lead to the conclusion that there should be monetary compensation. Such direct interference would itself be a wrongful act and would amount to an actionable interference of course any act honestly done by a person in furtherance of his own trade/profession, will not amount to a Tort of Inducing breach of contract, merely because it has induced such a breach. This because free and fair competition cannot be curtailed. The difference in all such cases is whether the act is done solely to carry on one's own trade or whether the act was done with intent to induce a breach or profiteer from somebody else's efforts.
14. In this case it is admitted that the Defendants know that the Plaintiffs have agreements with advertisers. Such agreements would require the 3rd Plaintiffs to assure that the advertisements of the advertisers appear during their programmes. With knowledge of this contract the Defendants, by simple expedient of switching off the programmes at the time that the advertisements are being broadcast are preventing the 3rd Plaintiffs from carrying out their contractual obligations. The Defendants are thus procuring a breach of contract by the 3rd Plaintiffs. This is a direct invasion. It is wrongful by itself. This amounts to an actionable interference. The Defendants then go further and place their own advertisements during this period.
15. The only submission which Mr. Kapadia could make is that the breach of inducement of breach of contract can only have been committed provided:
(a) there was a direct invasion,
(b) Some unlawful acts have been committed by the third party which prevents the performance of the contract, or
(c) where a third party has been persuaded to do some unlawful act.
16. Mr. Kapadia submitted that all the authorities set out hereinabove were cases of direct interference. He submitted that the Defendants were not directly interfering. He submitted that the Defendants have neither persuaded the 3rd Plaintiffs or the advertisers or anybody else nor induced any of them or exerted any pressure on any of the contracting parties. He submitted that the Defendants have not committed any wrongful act nor done anything unlawful. He submitted that the Defendants were merely exercising their right of carrying on their own trade by use of their own equipment. He submitted that if in exercise of their right to carry on their own trade the Plaintiffs or any one else gets affected it is only incidental. He submitted that no actionable right arises in favour of the Plaintiffs.
17. I am unable to accept those submissions of Mr. Kapadia. As has been seen, the actionable interference does not necessarily mean that there must be oral or physical communication or persuasion. Any act which has the effect of interfering/preventing performance even though it is without the knowledge or consent of both the contracting parties, would be an actionable interference. As seen in the case of G.W.K (supra) the tyres were changed without the knowledge and the consent of both the contracting parties. Yet the Court held that there was an actionable interference. The act of the Defendants prevented the Plaintiffs from displaying the cars with the tyres of the 2nd Plaintiffs. In this case, the Defendants by their action of switching off/blanking out the signals of the Plaintiffs, (exactly at the time that the Plaintiffs are broadcasting the advertisements) are preventing the 3rd Plaintiffs from performing their contractual obligations viz. to ensure that the advertisements of their advertisers appear in the programmes broadcast by them. In G.W.K's case the act resulted in cars being displayed without the tyres. In this case the Defendants' act results in the 3rd Plaintiffs' programmes (the entertainment part + and advertisement part = the whole) being displayed without the advertisements. As seen above the Defendants admit that they have knowledge that the 3rd Plaintiffs will have contracts with the advertisers.
18. In this case apart from inducing the 3rd Plaintiffs to commit a breach by effectually preventing them from showing their advertisers' advertisements the action of the Defendants would directly have the effect of the 3rd Plaintiffs losing all the advertisers. If this were to be allowed to continue nobody would want to advertise with the 3rd Plaintiffs, This because to a large audience in the cities the advertisements will not be available for viewing. The 3rd Plaintiffs thus would ultimately lose all contracts and get no advertisers. Undoubtedly the doctrine must not be extended to prevent a party from carrying on a genuine trade in fair competition. As seen above Mr. Kapadia had submitted-that all that the Defendants were doing was to carry on their own trade. The Court thus repeatedly asked Mr. Kapadia why, if the only intention was to carry on a trade in fair competition, the Defendants could not give their own advertisements on a separate channel in their own programmes. The Court repeatedly asked Mr. Kapadia whither there was any purpose in advertising Defendants' advertisements during the Plaintiffs' programmes, ether than to capitalize on the popularity of the Plaintiffs programme. Very significantly Mr. Kapadia refused to give any answer to the Court. He could give no ether reason. All Mr. Kapadia did was to keep on repeating that the Defendants had a right to and were therefore entitled to do this. The answer in my view confirms that the only purpose of giving the Defendants' advertisements during the Plaintiffs' programmes is to capitalise on the popularity of the Plaintiffs programmes, As seen above the greater the popularity of a programme the greater its viewing. Naturally advertisers would want their advertisements to appear during popular programmes which have a much larger viewing. Obviously the intention in switching off/blacking out the Plaintiffs' advertisements and putting their own. advertisements is nothing else but to ensure that the Defendants' advertisements are seen by the viewers of the Plaintiffs' programmes. This, in my view, is not a matter of carrying on a trade in fair competition. It is one thing to have your own advertisements in your own programme in competition with the Plaintiffs' advertisements in Plaintiffs' programmes. It is another thing to substitute your own advertisements in Plaintiffs' programme in order to capitalise on the popularity of the Plaintiffs' programmes. The latter is clearly an actionable wrong.
19. That brings us to the cause of action based on passing off. Mr. Chagla relied upon the case of Illustrated Newspapers Ltd., The Illustrated London News and Sketch, Ld., and The Sporting an Dramatic Publishing Company Ltd. v. Publicity Services (London) Ld. reported in LV Reports of Patents, Design and Trade Mark Cases Pg. 172. In this case the Plaintiffs were publishers of a paper. The Defendants inserted supplements carrying their own advertisement and then bound the papers as a whole. The Defendants then supplied the papers, The Defendants printed on the supplement (which they inserted) that the supplement bad been issued by them. In spite of this the Chancery Division held that the Defendants were passing off the supplement as those of the Plaintiffs. The Court held that the printing on the supplement, that it was published by the Defendants, was not sufficient to counteract the effect on the common men. The Court held that the common men would still consider the supplement to be a part of the paper. The Court also held that the result of the Defendants act would be that the Plaintiffs' paper would become a less attractive medium for the advertisers. The Court held that it was very likely that the advertisers then would go to the Defendants for their advertisements instead of the Plaintiffs. On this basis the Court restrained the Defendants from inserting any supplement into the Plaintiffs' paper.
20. As stated above, in this case if the Defendants were to be permitted to continue to do what they are doing the result must necessarily be that to advertisers would go to the 3rd Plaintiffs. All advertisers would thereafter consider going to the Defendants. This because the advertisements given to the Plaintiffs would not be viewed by a majority of viewers in the cities. Only advertisements given to the Defendants would keep on appearing. Mr. Chagla also relied on the case of Associated Newspapers Group v. Insert Media Limited reported in (1991) Fleet Street Reports Pg. 380. Here also in two national newspapers the Defendants inserted advertisement. Here also on the same ground the Defendants were restrained from inserting any advertisement in the Plaintiffs' newspapers.
21. Mr. Kapadia submitted that when the programmes of the Plaintiffs are going on the Plaintiffs' logo appears on the screen. He submitted that when the Defendants' advertisements appear the logo is no longer shown on the screen. He submitted that therefore the viewers immediately knew that these are not advertisements of the Plaintiffs. I am unable to accept this submission. The absence or presence of a small logo on the screen will not enable viewers to know that the advertisements are not those of the Plaintiffs. In most cases the absence of the logo would not even be noticed.
22. Faced with this Mr. Kapadia submitted that the Defendants were willing to display on the screen a notice stating that all advertisements were advertisements of the Defendants and not of the Plaintiffs. In my view, this still would not answer the question as to why the Defendants need to display their advertisements in/during the Plaintiffs' programme, if not to capitalise on the popularity of the Plaintiffs' programme. If the Defendants want to display their own advertisements they are always at liberty to display their advertisements in their own programme and in their own separate channel. It could not be denied that the Defendants have two channels known as ‘In Mumbai’ and ‘CVO’. The fact that the Defendants do not put all their advertisements in their own programme and channel, but insert the same into the Plaintiffs' programme speak volumes of the intention of the Defendants. It shows clearly that the only object is to capitalize on the efforts and fruits of somebody else who has made their programme popular. In my view there has been passing off and on this ground also the Plaintiffs are entitled to an injunction.
23. The other cause of action is Copyright and Broadcast Reproduction Rights. Under Section 2(g) of the Cable Television Networks (Regulation) Act, 1995, “programme” means any television broadcast and includes any exhibition of films, features, dramas, advertisements and serials through video cassette recorders or video cassette players. Under Section 6 no person shall transmit or retransmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement Code. Proviso however states that this Section would not apply to programme of foreign satellite channels which can be received without the use of any specialised gadgets or decoder. To be noted that therefore under Section 6 the advertisements contained in the broadcast of the 3rd Plaintiffs need not be in conformity with the advertisement Code, whereas advertisement broadcast by the Defendants would have held to be in conformity with the Code. By substituting their own advertisement during the Plaintiffs' programme the Defendants can effectively not comply with the advertisement Code on the ground that these are during the programme of & foreign satellite channel They could thus commit a breach of the Indian Law.
24. Under Rule 7 of the Rules framed under this Act, all advertisements must be distinguishable from the programme and should not in any manner interfere with the programme e.g by use of the lower part of the screen to carry captions static or moving alongside the programme. Thus this Rule makes it clear that when an advertisement is carried on the lower part, of the screen it would be unlawful. Of course, as stated above, the Defendants claim that they are not carrying any such advertisement. Therefore the Defendants would not be in any way affected by an injunction which would prevent people from doing what would otherwise be an unlawful act.
25. Mr. Chagla further submitted that the 2nd Plaintiffs are the owners of the copyrights in the programme. He had submitted that the 2nd Plaintiffs have given an exclusive licence to the 3rd Plaintiffs. He fairly stated that none of the Plaintiffs were claiming any copyright in the advertisement which copyright subsisted in the advertisers. He however submitted that the Plaintiffs have a copyright in the programme. He admits that the programme which is broadcast by the 3rd Plaintiffs consists of the original programme supplied by the 2nd Plaintiffs and the advertisements supplied by the 1st Plaintiffs. He submits that what is broadcast by the 3rd Plaintiff is one composite programme. He submitted that even though this is a “Free to Air Programme” yet the Plaintiffs have permitted viewing on certain conditions. He points out the conditions which are set out in para 13-A of the Plaint. He submits that the copyright being in the Plaintiffs a party may view or further communicate the programme only on these conditions. He submits that the Defendants are receiving the signals sent by the 3rd Plaintiffs and transmitting those signals through the mean of a wire to their subscribers. He submits that the Defendants charge their subscribers and earn money through that source.
26. Mr. Chagla points out, from the Affidavit of one Mr. Ketan Kanakia dated 6th December 1996, that the Defendants are aware of the conditions imposed by the Plaintiffs. He points out that the Defendants' only answer is that those conditions are not binding on them. He points out that the Defendants' case is that they are free to ignore the conditions. It must be mentioned that very fairly Mr. Kapadia did not even argue that the Defendants were not aware of the conditions. Mr. Kapadia submitted that there was no binding contract between the Plaintiffs and Defendants. He submitted that the Defendants were not bound to comply with conditions imposed by the Plaintiffs. He submitted that the Defendants had a right to and were entitled to use their own equipment in such manner as they liked, including switching off the Plaintiffs signals and substituting their own broadcast during the Plaintiffs' programme. Mr. Kapadia submitted that it was the 3rd Plaintiffs who were broadcasting. He submitted that the 3rd Plaintiffs had no copyright in India. He submitted that there was no infringement of the copyright of the 3rd Plaintiffs and no infringement of any other right of the 3rd Plaintiffs.
27. To consider these rival submissions one must see the provisions of the Copyright Act. Under lection 2(dd) a broadcast also means communication to the public inter alia by means wireless diffusion and includes a re-broadcast, Section 2(f) of the Copyright Act, 1957 provides that a cinematograph film includes any work of visual record mg on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording. Under Section 2(ff) “communication to the public” means making any work available for being seen or heard or otherwise enjoyed by the public directly or by means of display or diffusion other than by issuing copies of such work. There cannot be slightest doubt that what the Defendants are doing are communicating to the public and are broadcasting. Section 14 gives an exclusive right to, amongst other things, communicate a film to the public. Under Section 30 the owner of the copyright may grant a licence in writing to an agent. Section 51(a) of the Copyright Act provides that the copyright in a work shall be deemed to be infringed if a person, without a licence granted by the owner or in contravention of the conditions of a licence does anything the right to do which is conferred upon the owner of the copyright. Under Section 54 the owner of a copyright also includes an exclusive licensee. Thus it would be clear from the provisions of the Copyright Act, 1957 that without a valid licence in writing that the Defendants could not even communicate the Plaintiffs' programme to their viewers. The argument of Mr. Kapadia that the Copyright Act, 1957 only protects Indian Copyright is correct However Mr. Kapadia is not right in his submission that 3rd Plaintiffs have no copyright in India. This argument is based on fact that 3rd Plaintiffs are established in British Virgin Island and is broadcasting from Hongkong. What was relied on was the fact that neither the British Virgin Island nor Hongkong were parties to the Borne Conventions and thus did not have any arrangement with India whereby copyrights in their country were recognised in India. This argument is also based on fact that admittedly the copyright in the advertisements belongs to the various advertisers who are not before the Court. Mr. Kapadia's submission was that even though the 2nd Plaintiffs were owners of copyright the Defendants were not interfering with the programme and thus not interfering with copyright of the 2nd Plaintiffs. What these arguments over looks is that an exclusive licensee is also an owner of a copyright. Ultimately what is broadcast is one composite programme. That composite programme may consist of the entertainment portion and the advertisement portion. But the advertisement portion is as essential part of entertainment programme. Without the advertisements it would be difficult to sustain the entertainment part. Thus an interference with the advertisement part has a direct result of interfering with the entertainment part also. The two cannot be separated in the manner as Mr. Kapadia has sought to do. Admittedly the 2nd Plaintiffs have copyright in the entertainment part. As exclusive licensees the 3rd Plaintiffs are also owners of copyright in India of the entertainment part. If the interference affects this part, as it does, then copyright in India is infringed. Even otherwise the programme is viewed in India. The interference is taking place in India. The rights of the party are being affected in India. The cause of action would therefore arise in India.
28. Section 37 of the copyright the Copyright Act, 1957 also confers what is known as a “Broadcast Reproduction Rights”. Prior to 1994 Section 37 only protected broadcasts by the Government or a Broadcasting Authority. With the advent of so many foreign broadcasting stations and the availability in India of so many programmes broadcast from abroad by foreign companies, Section 37 has been amended. Now every broadcasting organisation has been given a Broadcast Reproduction Right. Mr. Kapadia had submitted that the Copyright Act being restricted to India, this provision was also restricted to Indian Companies. I am unable to accept this submission. In my view, this right is not conferred only on Companies in India. In my view this right is available to all broadcasting organisation, wherever they are situated, so long as the broadcast is available in India for viewing. Under the Broadcast Reproduction Right nobody can rebroadcast the broadcast or cause a broadcast to be seen or heard by the public on payment of any charges without a licence from the owner. Thus in fact the Defendants cannot broadcast the 3rd Plaintiffs' programme nor cause the 3rd Plaintiffs programme to be heard or seen by the public on payment of charges without a licence from the Plaintiffs. This is very clear from Section 39-A of the Copyright Act which makes applicable the provision of section 30 even to a Broadcast Reproduction Right. Section 30 enables the giving of a licence in writing.
29. Faced with this situation Mr. Kapadia submitted that the Plaintiffs' programme was Tree to Air”. He submitted that since it was Tree to Air” the Defendants did not need a licence. However, to be noted that the programme is Tree to Air”, subject to the conditions imposed by the Plaintiffs (as set out in para 13-A of the Plaint). Thus if the Defendants want to avail of the Tree to Air” programme they can only do so provided they strictly comply with the conditions laid down by the Plaintiffs. It is not open to the Defendants to state that they would re-broadcast the broadcast or cause the programme be heard or seen by the public on payment of charges, but they would not be bound by and not comply with the conditions laid down by the Plaintiffs. If a licence were to be obtained then Defendants would be bound by the conditions. By not obtaining a licence, they cannot put themselves into a better position. To accept such an argument would mean that the Defendants can, by the simple expedient of not obtaining a licence negate and/or violate the provisions of Section 37 of the Copyright Act.
30. It may only be mentioned that Mr. Chagla has shown to the Court a form of certificate which the Plaintiffs have started issuing to various cable operators. This certificate is in effect a licence. This lays down the same conditions as are set out in para 13-A of the Plaint. Thus the Plaintiffs are in fact issuing licences in writing. In my view the Defendants can only avail of the Tree to Air” programme provided they agree to and comply with the conditions laid down by the Plaintiffs in para 13-A of the Plaint This would necessarily mean that the Defendants must communicate or broadcast the Plaintiffs' programme in its entirety, including the advertisement portion. The Defendants cannot shut off, much less substitute the Plaintiffs' advertisements with their own advertisements.
31. The next cause of action is based on conversion. The conversion is of property in the form of signals. The conversion is based on Defendants doing an act which is inconsistent with the rights of the true owner.
32. In support of this Mr. Chagla has relied upon the authority in the case of Okley v. Lyster reported in (1931) King's Bench Division, Pg. 148 (1983) 2 All England Law Reports Pg. 189. In case the Plaintiff, a demolition contractor, had agreed to pull down an aerodrome and to reinstate the land on which it stood. This work involved removal of large quantity of hard core and tar macadam. On removal these became the property of the Plaintiff. The Plaintiff had arranged with the tenant of a farm, on the opposite side of the road from the aerodrome, to rent three and a half acres of the land whereon he dumped the stuff. The Plaintiff then started selling portion of this stuff. However at the time of the cause of action app. about 4000 tons of this stuff was still undisposed and lying on that land. The Defendant purchased this farm. He then started removing the hard core. The Defendant claimed that as he had bought the land all that was on it belonged to him. The Plaintiff therefore claimed damage for conversion. One of the questions before the Court was whether the Plaintiff had framed his cause of action correctly. The Court held that some years ago if a person wanted justice from a Court, he had to obtain a particular form of writ, and, if he chose a wrong one, his claim was not maintainable whatever the facts might be. The Court held that therefore the Plaintiff had to express his claim in a way that was legally accurate, and if he did not do so, a demurrer put an end to the action. The Court held that now a days Courts find out the facts and having done so, endeavour to give the right legal Judgment on those facts. This on the basis that the Courts proceed to see whether any injustice has been done and then to give justice. The Court held that if a person deals with goods in a manner inconsistent with the right of the owner it amounts to conversion, provided it is established that it was done with an intention to deny the right of the owner and to assert a right which is inconsistent with the owner's right
33. Mr. Kapadia submitted that conversion necessarily has to be of chattel. He submitted that in this case there is no chattel or goods. He submitted that all the Plaintiffs are only transmitting signals. He submitted that these signals do not constitute goods. He further submitted that in any event the Defendants are not interfering with the transmission or the signals in any manner. He submitted that this is clear from the fact that the Plaintiffs' signals are not distorted or affected. He submitted that any person who has a satellite dish can pick up the Plaintiffs' signals at the same time that the Defendants are showing their own advertisements. He submitted that the transmission is on the entire Asian footprint. He submitted that the Defendants' viewers are restricted to certain cities in India. He submitted that all other viewers can watch the Plaintiffs' programme as their signals are in no way distort or affected. He further submitted that a claim in conversion can only be made by the true owner, He submitted that the true owners of the advertisement portion of the programme are the advertisers who are not before the Court and who have not made a complaint. He submitted that therefore there was no conversion.
34. As regards the question whether signals constitute goods or chattels, it must be seen that under the Sale of Goods Act, 1930 “goods” means any movable property other than an actionable claims and money. The term “movable property” has been construed by the Supreme Court in respect of electric energy. In the case of The Commissioner of Sales Tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur reported in (1969) 1 SCC 200 : AIR (1970) S.C Pg. 732, the Supreme Court has held that the term “movable property” cannot be construed in a narrow sense. The Supreme Court has held that merely because electric energy is not tangible and cannot be moved or touched, for instance, like a book or piece of wood, does not mean that it ceases to be movable property. The Supreme Court has held that electric energy has all the attributes of movable property inasmuch as it can be transmitted, transferred, delivered, stored and possessed in the same way as in other movable property. Signals transmitted by the 3rd Plaintiffs can also be transmitted, transferred, delivered, stored and possessed. In fact they are being communicated by the Defendants. Many of the programmes are being stored and they can be possessed. In my view, all the attributes of a movable property are present. It must thus be held that signals are movable property within the meaning of the Sales of Goods Act.
35. The conversion which is claimed is not the conversion of merely advertisement portion of the programme. The conversion which is claimed is of the programme in its entirety. The programme in its entirety belongs to the 3rd Plaintiffs, who are, transmitting it from Hongkong. The Defendants are shutting off a portion of the programme and substituting their own advertisements during that time. The Defendants are claiming a right to do so. The Defendants are thus claiming a right contrary to the right of the true owner. In my view the Tort of conversion has been committed. The mere fact that the signals themselves are not interfered with or distorted is of no consequence. The signals are transmitted for the purpose of viewing by the public. Public in the cities, wherein the Defendants run their cable networks do not receive the signals of the Plaintiffs (during the advertisement programme) as Defendants shut it off. Thus the signals have been interfered with. By asserting a right to be able to do so, the Defendants are asserting a right contrary to the right of the true owner.
36. In my view the Plaintiffs have made out a good prima-facie case on all the causes of action. Under these circumstances, the Notice of Motion & made absolute in terms of prayer (a). Liberty is granted to the Plaintiffs to apply for appointment of Court Receiver in terms of prayer (b) if it is found that the Defendants or any of their servant or agent or contractor are still committing a breach of this Injunction by continuing to displaying their own advertisements during the Plaintiffs' programme in any manner whatsoever.
37. Mr. Thakore applies for stay of the Order.
38. He submits that even though an Ad-Interim Injunction was granted, the Appeal Court stayed that Injunction. In my view, the earlier Orders were at an Ad-Interim Stage. No speaking Order has been passed by the Appeal Court. Now the Notice Motion has been fully heard by this Court. The Court has held that the Defendants are wilfully and intentionally committing a wrongful act and are affecting the Plaintiffs' right. Under such circumstances, there can be no question of any stay being granted. Also the Defendants' right to get advertisements and show advertisements is in no way affected. As stated above, the Defendants have their own channels and their own programmes. As stated above they are at liberty to show the advertisements in their own channels and in those programmes. Thus Defendants are not affected except that they are prevented from capitalising on the popularity of the Plaintiffs' programme. Such a right the Defendants can never have. Thus stay is refused.
39. Issuance of the certified copy of the Order is expedited.